author: Mr. Justice Paxson

text:
    City of Allegheny versus Black's Heirs
    Where, by the opening of a particular street by the municipal authorities, the owner of property through which it passes is enabled to lay out another street or streets upon his own land, thereby increasing his available frontage and the market value of his property as a whole, this circumstance may be taken into account by a jury in estimating the benefits to be assessed upon such owner.
    Pittsburgh and Lake Erie R. R. Co. ». Robinson, 14 Norris 436, distinguished.
    November 10th 1881.
    Before Sharswood, C. J., Mercur, Paxson, Trunkey and Sterrett, JJ. Gordon and Green, JJ., absent.
    Error to the Common Pleas No. 2, of Allegheny county : Of October and November Term 1881, No. 293.
    This was an appeal by the heirs of George Black from the report of viewers on the opening of Frazier street in the city of Allegheny, from Western avenue to Ridge avenue, along the western line of property belonging to appellants. An issue was framed by the court, wherein the appellants were plaintiffs and the city of Allegheny defendant, to determine what damages plaintiffs were entitled to for said opening.
    On the trial, before Kirkpatrick, J., the defendant called Isaac M. Penneck to the stand, and proposed to prove by him and other experts, that the opening of Frazier street along the west line of the Black property, from Western avenue to Ridge avenue, would enable the owners of that property to subdivide in into blocks of lots by streets and alleys opening into Frazier street, which subdivision of the property would largely increase its value.
    Plaintiffs objected to this offer as irrelevant and incompetent, because the inquiry for the jury was what are the benefits and damages inflicted by the location of Frazier street proposed, and not as affected by the question of ulterior streets or alleys, that may or may not be made, either under public authority or by the private owners of the property, by reason of the opening of Frazier street.
    Objections sustained; evidence excluded; exception.
    This offer of evidence constituted what was termed offer (A.)
    The defendant then called Robert McKniglit to the stand, and made a similar offer, which was also objected to and excluded. Exception.
    This constituted what was known as offer (B.)
    A verdict was rendered for plaintiffs in the sum of $13,000, and judgment was entered thereon. Defendant thereupon took this writ, assigning for error the exclusion of its offers of evidence.

      W. B. Rodgers, city solicitor, for the plaintiff in error. —
    In estimating the advantages in cases of this kind, any and every thing peculiar to the property resulting from the opening of the street which is beneficial in its nature, should be considered. The inquiry is not to be limited to the uses to which the owner may wish to put it, but to its general market value for any purpose that will induce persons to purchase: Shonango <& Allegheny E. E. Co. v. Braham, 29 P. F. Smith 453; Cummings v. Williamsport, 3 Nor. 479 ; Furman Street, 17 Wend. 669'; McTerren v. Mont. E. E. Co., 2 W. N. C. 41; City of Philadelphia v. Linnard, 10 W. N. C. 151; Pittsburgh & Lake Erie E. E. Co. v. Eobinson, 14 Norris 426; The Newville Eoad Case, 8 Watts 172 ; Ferry v. Hartford, 39 Conn. 286.

      George Shiras, Jr., for the defendants in error.' —
    The effort was to have witnesses state what, in their opinion, would be the result of opening other streets and alleys after Frazier street should be opened. The vice, of such an offer is, not only that the result of opening future streets is purely conjectural, and that it is altogether uncertain whether such streets will ever bo opened, but also that the owners would thus be charged twice with the same benefits. In other words, street A being constructed, the city proposes to offset the damages thereby occasioned, by calling witnesses to say what might be the effect of afterwards opening street B. But there was no offer to show that street B would ever be opened. And if street B should be hereafter opened, the benefits occasioned by opening it would legally be chargeable against the disadvantages occasioned by its construction. Hence, the benefits occasioned by opening street B would be charged twice — first, against the damages caused by opening street A ; second, against the damages caused by opening street B.
    None of the authorities cited by plaintiff in error sanction the offers.
    It is said that even if the city should not open future streets, defendants in error may do so. But surely it cannot be held that they ai’e bound to dedicate to the public additional portions of their property, in order to lessen the damage occasioned by the public taking a portion in the first place.
   Mr. Justice Paxson

delivered the opinion of the court, November 21st 1882.

The measure of damages for the taking of land for a public highway, is the difference between the market value of the entire property, at the time a portion of it is taken, or the injury committed, and its market value after such injury. See Shenango and Allegheny Railroad Company v. Braham, 29 P. F. S. 447, where many of the authorities are collected. In estimating the market value of the land, everything which gives it intrinsic value is to be taken into consideration. And it is not to be limited to a particular rise. Ibid., and see Cummings v. City of Williamsport, 3 Norris 472. But, in considering the advantages, it is not competent for the jury to consider the possibility, that the municipal authorities may at some future day open other streets through or near the property, which, when so opened, will render it more valuable for building lots. ' This results from two reasons: 1. Such streets may never be opened; and, 2. Should they be opened, the owner would be then liable to have his property assessed for such benefits as may follow from such opening. This would render him liable to be assessed twice for the same thing, which cannot be permitted.

But where by the opening of a particular street by the municipal authorities, the owner of property through which it passes is enabled to lay out another street or streets upon his own land, thereby increasing his. available frontage and the market value of his property as a whole, there seems no good reason why such state of facts should not be considered by the jury in estimating the benefits. It is true, the owner may not choose, and certainly is not bound to open streets through his property and dedicate them to public use, to enhance the value of his remaining property. He may prefer to keep his land to grow cabbages. But, as before observed, the use is not the test. It is the market value, for any use for which it is available. Whatever contributes to the market value of the property is a fair subject for consideration. In the Pittsburgh and Lake Erie Railroad Company v. Robinson, 14 Norris 426, it was held, in the case of a manufacturing establishment claiming damages for the taking of a portion of its land for a railroad, that it was competent for the latter to show, and for the jury to consider, that the company’s depot was convenient to the said manufactory, and that a switch connection was practicable. In the City of Philadelphia v. Linnard, 2 Out. 242, where the owner in rebuilding had been compelled to recede to the new line of Chestnut street, the city was permitted to show, in determining the market value of the property after the recession, the probability that the adjoining houses would be set back at some future period, in 'conformity with the Act of Assembly, which requires such recession in case of rebuilding.

We are of opinion, the evidence, referred to in the assignments of error should have been admitted. By defendants’ offer (A), it was proposed to prove by the witness on the stand and other experts, “that the opening of Frazier street along the west line of the Black property, from Western avenue to Nidge avenue, would enable the owners of that property to subdivide it into blocks of lots by streets and alleys opening into Frazier street, which subdivision would largely increase its value.” This offer was objected to, for the reason that, “ the inquiry for the jury is, what are the benelits and damages inflicted by the location of Frazier street proposed, and not as affected by the question of ulterior streets or alleys, that may or may not be made, either under public authority or by the private owners of the property, by reason of the opening of Frazier street.” The learned court sustained the objection and excluded the evidence. This was error. The offer did not refer to streets hereafter to be opened by the municipal authorities. It was to show the facilities which the opening of Frazier street would give to the owners of the Black property, to subdivide it by laying out streets and alleys through it, opening into Frazier street; and that such facilities would largely increase its value. We are bound to assume the facts to be as stated in the offer. They show that the opening of Frazier street would enable the owners to subdivide their property, and thus greatly increase its value. That the owners may not desire to avail themselves of the privilege, is not material.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Appeal of the Western Pennsylvania Railroad Company.
    1. A railroad company authorized by its charter to construct its road from a city to another point may construct its road from any point within said city.
    3. A railroad company authorized as aforesaid, obtained from the councils ot the city from which it was to construct its road a grant of a right of way along a river bank to a certain street. It formally accepted the grant,, constructed its road along the river bank to said street, and subsequently bought a lot upon said street on the opposite side of an avenue running along the river from that on which its tracks were constructed. The greater part of this lot it allowed to be used as a lumber yard. It fitted up, however, an old frame house standing thereon as a passenger station and erected a small slied for freight. Most of its freight business in the city was done elsewhere, and but a single track connected the shed with the main line. Held, that the power reposed in the railroad company to locate and establish a terminus had not been exhausted and that it was clearly competent for it subsequently to establish a terminus at another point within the city limits.

      3. A railroad company is authorized by the Act of April 4th 1868, § 9, Pamph. L. 64, to construct a branch line from its terminus as well as from any other point on the main line of its road. Even, therefore, if the railroad company had in the case above stated definitely fixed its terminus, it would have been fully authorized by the terms of the said act in continuing its road along the river bank.
    4. In the case above stated the railroad company made application to city councils for a grant of the right of way along the river bank, beyond the point to which the road had been originally constructed. The councils granted the right of way under certain conditions calculated to ensure the safety and convenience of the citizens. Held, that said councils were fully authorized by the provisions of the act of June 9th 1874, Pamph. L. 282, in making said grant, and that the railroad company were entitled to take advantage thereof.
    5. The land of a railroad company, consisting of a portion of the bed of a disused canal, purchased from the Commonwealth, upon which no tracks are actually laid by the owner, although they shortly are to be laid, is liable to be crossed by the tracks of another railroad company in such a manner as will not interfere with the use thereof for the construction of a railroad.
    November 10th 1881.
    Before Sharswood, C. J., Merour, Paxson, Trunkey and Sterrett, JJ. Gordon and Green, JJ., absent.
    Appeal from the Court of Common Pleas No. 2, of Allegheny county: Of October and November Term 1881, No. 290.
    Bill in equity between the Western Pennsylvania Railroad Company, complainant, and the Pittsburgh and Western Railroad Company, defendant. The prayer of the bill was for an injunction to restrain the company defendant from constructing or laying its tracks upon certain land of the company complainant, or, in the alternative, for an injunction to restrain said company defendant from so constructing its tracks, until the court should determine upon what terms and conditions, in what manner, and at what grade said tracks should be constructed upon said land. An answer was filed and the case was submitted to R. B. Carnahan, Esq., as examiner and mastei’, by whom the facts were reported to be siibstantially as follows:
    The W estern Pennsylvania Railroad Company complainant is the owner of a certain part of the bed of the Pennsylvania canal in the city of Allegheny. Its title is derived through divers mesne conveyances from the Commonwealth. A portion of the bed of the canal thus owned is occupied by the tracks of the company complainant. That portion, however, lying between Federal street and the Allegheny river is not so used, and is wholly filled up. Three of the city streets cross it at grade, a sewer has been laid down by the city upon it, a number of lumber yards are therein situate, and in short there is scarcely any trace of the former canal. The company complainant averred, however, in its bill, that the whole of said portion of the canal was necessary for the present or prospective uses of the company, and as a matter of fact it appeared that some preliminary steps had been taken looking to the construction of the said company’s tracks thereon.
    The Pittsburgh, New Castle and Lake Erie Kail way Co. was on September 22d 1877 duly incorporated with power to construct a railroad “ from Allegheny city, in the state of Pennsylvania to the village of Wurtemburg, in Lawrence county, Pennsylvania.” The said company immediately proceeded to build its road, and in November 1877 presented a petition to the councils of Allegheny city, praying for the grant of a right of way over the streets of the said city. In pursuance of this petition an ordinance was on December 21st 1877 passed by said councils, whereby they granted to said company a right of way “ along the bank of the Allegheny river or upon Kiver avenue, from the eastern terminus of the city to the east line of Sandusky street.” This ordinance was duly accepted by the company on December 31st 1877.
    After this date work was continued upon the road, but the same was not completed when, on August 27th 1879, the whole road was taken into execution and sold, the Pittsburgh and Western K. K. Co., defendant, becoming the purchaser. Said company at once took possession of the road in its unfinished state and completed the same along the river bank, up to the east side of Sandusky street. In the early part of January 1880, said company defendant bought for the sum of $11,000, a piece of ground on the east side of said Sandusky street, and on the opposite side of Kiver avenue from that on which their main track was situate. The greater part of this lot was occupied by a board yard which the company has since allowed to remain there. Upon the residue of the lot stands an old frame building which the company fitted up for a passenger station and for offices. Near by they erected a small frame shed for freight. A single track connected this shed with defendant’s main line upon the opposite side of Kiver avenue, and it appeared that the greater part of the freight business was done elsewhere. The company defendant took no steps towards the erection of any more permanent buildings on said lot of ground, nor did they do any other act than those above set foi’th indicating an intention to fix their terminus at that point.
    On September 9th 1880, the councils of the city of Allegheny passed an ordinance granting to the Pittsburgh and Western Kailroad Company, defendant, a right of way along the banks of the Allegheny and Ohio rivers, or on Kiver avenue westward from the east side of Sandusky street to the westward limits of the city. This ordinance, however, contained certain terms or conditions, a breach or refusal to comply with any of which it was provided should work an immediate forfeiture of all rights and privileges granted. These conditions were in substance that the railroad should be so constructed as not to interfere with street crossings, or with the use of the wharves ; that the road should continue to be operated, that suitable freight and passenger stations should be erected and maintained thereon within the city limits, that there should be no unjust discrimination in freight or fares, that the company should submit to and observe the municipal regulations with regard to speed of trains, gates, flagmen, &e.
    The company defendant formally accepted this ordinance, and in pursuance thereof proceeded to construct their road along the river bank, proposing to continue the same so as to cross the company complainant’s canal property close to the river by a bridge twenty-one feet above the level' of said property. The company complainant thereupon filed the present bilí seeking to enjoin the company defendant from constructing the said bridge.
    The company complainant claimed that the company defendant had by its positive acts fixed its terminus on the eastern side of Sandusky street, and that it had no power to continue its road westward of that point. The master held, however, that there had been no such positive acts as to fix the terminus at that point. He held, moreover, that the continuance of the track westward from said point was fully authorized either by the Act of April 4th 1868, § 9, Parnpli. L. 62, or by the ordinance of 1880, in pursuance of the provisions of the Act of June 9th 1874, Pamph. L‘. 282. . He reported in addition that there was no reason why the company defendant should not construct its tracks over the land of the company complainant over the bridge proposed. He recommended, therefore, that the bill be dismissed.
    Exceptions were filed to this report, which were dismissed by the court in an opinion by Ewxns, P. J. A decree was, however, entered, fixing the height of the proposed bridge at twenty-one feet, requiring that the same should rest on abutments entirely outside of the company complainant’s land, and granting and securing to said company complainant the right to make use of the bridge, and to cross the tracks thereon at grade upon such terms as the court should specify.
    The company complainant thereupon took this appeal, assigning for error, inter alia, the dismissal of the exceptions to the master’s report and the entering of the decree as above.

      Hampton and Dalzell, for the appellant. —
    The appellee having accepted the provisions of the ordinance of 1877, the same constituted a contract between the appellee and the city, fixing and establishing the western terminus of the railroad at Sandusky street: Birmingham Pass. Py. Co. v. Borough of Birmingham, 1 P. F. Smith 41.
    Moreover, when the appellee entered into this contract, the same was complete and binding upon it, and its power to establish a new terminus was gone: Com. .Dig. tit. Election, C. 2; Pol. Abr. 4-26, I. 15; State v. Norwalk & D. Turnpike Co., 10 Conn. 157; L. & N. B. Turnpike Co. -2 Swan (Term.) 282; Mason v. Brooklyn City &. N. P. Co., 85 Bai'b. 873.
    A railroad company must accimately define in the first instance its termini. This is undoubtedly true in relation to roads: Poad in Lower Morion, 8 P. F. Smith 66; Bean’s Poad, 11 Casey 280; Poad in Lower Salford, 1 Casey 524.
    The same principle applies with greater force to railroad companies that act independently of courts in locating their lines and establishing termini.
    The pi’oposed road could not be built as an extension of the old x’oad. Although a railx’oad company may use some discretioix in constructing its railroad, it caixnot, after the road is located, make a relocation or abandon a route once adopted for a more eligible one, ox- use this power for making an extensioxx: Peavey v. Calais P. P. Co., 30 Maine 498; Morris and Essex P. P. Co. v. Central Pailroad Company, 2 Vroom 205; Moore-head v. Little Miami P. P. Co., 17 Ohio 340; Pruning v. N. O. C. and B. Co., 12 La. An. 541.
    Nor can it be built as a branch or lateral l’oad under the Acts of 1849 or 1868. Both of these acts clearly authorize branches fx-om the main line between the termini, not prolongations of such main line beyond the termini.
    The ordinaixce of 1880 cannot be claimed to authorize the proposed extension under tlxe provisions of tlxe Act of June 9th 1874, Pamph. L. 282. The intention of that Act was to authorize municipalities to contract with railroad companies as to the relocation of l’oads already within the city limits and not as to extensions or branches.

      A. M. Brown, for the appellee. —
    The construction of the proposed road was clearly wi thin the branching power conferx’ed by tlxe Act of April 4th 1868, § 9, Pamph. L. 62; Getz’s Appeal, 10 W. N. C. 453; Mayor, etc., of Pittsburgh v. Pennsylvania P. P. Co., 12 Wright 355. Bxit further, it is authorized by the ordinance of 1880. The Act of June 9th 1874, Pamph. L. 282, granted full authority to the municipality in the premises : Duncan v. Pennsylvania P. P. Co., 7 W. N. C. 551.
    Pailroad companies are incorporated, not for the promotion of mere private ends, but in view of tlxe public good they may subserve: Marsh v. Eairbmy R. R. Co., 14 A. L. Reg. 561. The location of a depot has much to do with the accommodation of the public, and a court of equity will not compel a railroad company to permanently locate its depot at a particular spot, in order to subserve the private advantage of an individual: Marsh v. F. P. & N. W. R’y Co., 12 A. L. Reg. 390. A charter fixing the terminus of a road at or near a certain point gives the company a large discretion, which will only be interfered with where it has clearly exceeded its limits or acted in bad faith: Fall River Iron Works Co. v. Old Colony R. R. Co., 2 A. L. Reg. 699 ; Parke’s Appeal, 14 P. F. Smith 137.
    A corporation, by its delegated power of eminent domain, may take the property of another corporation, upon making compensation : 1 Redfield on Railways, part III., § 61, par. 1, 4, 10; Vermont v. Boston, C. & M. Railroad, 25 Vermont 433 ; Phila. and Reading R. R. Co. <o. Philadelphia, 11 Wright 329 ; Com. v. Pa. Canal Co., 16 P. F. Smith 47; In re Towanda Bridge Co., 10 Norris, 216 ; Constitution of Penn’a, art. 1, § 10, and art. 16, § 3 ; Illinois Central R’y Co. v. United States, 20 Law Rep. 630.
   Mr. Justice Sterrett

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

The right of the Pittsburgh and Western Railroad Company, under its charter and ordinances of the city of Allegheny, to locate and construct its railroad along the Allegheny and Ohio rivers, within said city, from the eastern to the western boundary thereof, has been so conclusively shown by the learned master in his able and exhaustive report, that it is unnecessary to add anything to the reasons given or authorities cited in support of that conclusion.

The Pittsburgh, New Castle and Lake Erie Railroad Company, which was succeeded in title by the appellee, was incorporated in September 1877, under the provisions of the act of April 4th 1868, and its supplements, with power to construct a narrow guage railroad from Allegheny city to the village of Wurtemburg, in Lawrence county, Pa. The company, immediately after its organization, commenced the work of construction, obtained from the city of Allegheny the right of way for a single or double track “ along the bank of the Allegheny river, or upon River avenue from the eastern terminus of the city to the east line of Sandusky streetand in less than two years had completed the greater part of its road outside the city limits. In August 1879, all its property, rights, franchises, &c., were sold by the sheriff and duly conveyed to the purchasers, who associated themselves as the Pittsburgh and Western Railroad Company, by which name they were incorporated in October of that year. The new company, having thus succeeded to all the property, rights and franchises of the Pittsburgh, New Castle and Lake Erie Railroad Company, took possession of the road and proceeded to complete the same. In the early part of January 1880, that portion thereof between the eastern line of Sandusky street and the borougli of Etna was opened for trade and travel.

The main contention of appellant was that the Pittsburgh and Western Railroad Company has no authority to extend its road west of the eastern line of Sandusky street, because its predecessor in title had located, marked and determined the route of the road, and by accepting the ordinance granting the right of way to the east line of Sandusky street had selected and finally fixed that point as its western terminus; and also, because the appellee, after acquiring title, had completed the road to that point, purchased property, and established its terminal depot there. On the other hand, it was contended that the western terminus of the road had never been definitely settled either by the original company or its successor; that it had always been the fixed purpose of both companies, while they respectively owned and controlled the road, to reach the western boundary of Allegheny city, as soon as the necessary consent thereto of the city councils could be obtained. After a careful consideration of the evidence bearing on this subject, the learned master found in favor of the appellee ; and in this we think he was clearly right. Without referring specially to the grounds on which his conclusions are based, it is sufficient to say that they are entirely satisfactory. The power to locate and establish the western terminus of the road in Allegheny city had not been exhausted by any act of appellant or its predecessor; and, by virtue of its charter and the ordinance of September 9th 3 880, granting the right of way to the appellees, it is clearly authorized to construct and operate its road along the banks of the Allegheny and Ohio rivers, or upon River avenue to the western boundary of the city, subject to the conditions and restrictions imposed by the ordinance last mentioned.

It is true the original company was chartered to construct a road “from the city of Allegheny,” «fee., but that clearly means from any point within the city. Moreover, companies chartered either under the act of 1849 or the act of 1868, are expressly authorized to extend their respective roads into any city, town or village named in their charter as a terminal point, provided that in the case of an incorporated city, the streets, lanes and alleys thereof, shall not be occupied by any such railroad without 'the consent of the corporate authorities first had and obtained. In tbis case such authority was expressly given by ordinance.

Independently of the foregoing conclusion, and on the assumption that the eastern line of Sandusky street had been selected and fixed by the company as the western terminus of its road, the learned master also held that the appellee is authorized to construct its road from the east line of Sandusky street to the western boundary of the city, either under the power contained in the ninth section of the Act of 1868, “ to construct such branches from its main line as it may deem necessary to increase its business and accommodate the trade and travel of the public,” or under the provisions of the Act of June 9th 1874, P. L. 282, in connection with the ordinance of September 9th 1880.

The branching power, given by the ninth section of the Act of 1874, is sufficiently broad and comprehensive to authorize the construction of the road in question as a branch; and there is no valid reason why it may not be constructed from the terminus as well as from any other point on the main line of the road. The letter, as well as the spirit of the section, justifies the construction put upon it by the master.

The Act of 1874 declares, “ That the proper authorities of any county, city, town or township of this state, respectively, be and they are hereby authorized and empowered to enter into contracts with any of the railroad companies, whose roads enter their limits, respectively, whereby the said railroad companies may relocate, change or elevate their railroads within such limits or either of them, in such manner as in the judgment of such authorities, respectively, may be best adapted to secure the safety of lives and property, and promote the interest of said-county, city, town or township ; and for that purpose the said authorities shall have power to do all such acts as may be necessary and proper to effectually carry out such contracts; ” &c. This is a general law, manifestly intended to provide for a class of cases in which, before the adoption of our present constitution, special legislation was frequently invoked. As the natural result of the rapid development of our material resources and growth of population, especially in our larger cities, the public interest, convenience and safety from time to time require changes both in the location and construction of railroads. The legislature, recognizing these facts, authorized the proper authorities of the respective municipal districts mentioned in the act to enter into contracts for making such changes as in their judgment may be best- adapted to secure the safety of life and property, and at the same time promote the interest of the particular municipality. The Ordinance of September 1880, which was accepted by the appellee and forms a contract' between it and the city of Allegheny, is carefully drawn, and its provisions well guarded with the view of securing the several objects contemplated by the Act of 1874. If, in the judgment of the city councils, the terms and conditions on which the right of way was granted, to the appellee were best calculated to secure the safety of life and property and promote the interest of the city, their right to make the contract cannot be questioned; and it is equally clear that the appellee was authorized to accept and carry out the provisions of the ordinance.

Wo think, therefore, that on either of the grounds stated and discussed at length by the master, the appellee has the necessary corporate authority to construct its road from the eastern to the western boundary of the city on the route specified in the ordinances granting the right of way.

The corporate right of the appellee, thus to locate and construct its railroad, being settled, the next question is whether, for the purpose of either a grade or overhead crossing, it has a right to appropriate any part of the strip of land claimed by appellant under title derived from the Commonwealth. The validity of appellant’s title, and its right to hold and use the strip of land known as the canal lot for railroad ■ purposes cannot be doubted. It has been definitively settled, by an unbroken line of decisions, that the Commonwealth acquired an absolute estate in perpetuity in the land taken and occupied for canal purposes; and by virtue of the Act authorizing the sale of the main line of the public works and sundry mesne conveyances, that title, which for all practical purposes was a fee simple, became vested in the appellant company: Comm. v. McAllister, 2 Watts 190; Haldeman v. Penna. R. R. Co., 14 Wright 425; Craig v. Allegheny City, 3 P. F. Smith 477; Robinson v. West. Penna. R. R. Co., 22 P. F. Smith 316. By subsequent legislation the appellant was authorized to construct and maintain on the bed of the canal a railroad with branches, etc.

While the company appellant is thus invested with an absolute title in fee to the canal lot, with the right to use the same for railroad purposes, it by no means follows that its rights are so sacred or exclusive that, under a proper exercise of the power of eminent domain, its property may not be subjected to an easement in favor of the appellee or any other railroad company. If a crossing can be effected, either at grade or by means of a viaduct, without materially interfering writh appellant in the exercise and enjoyment of its franchise, the right to make such crossing, upon paying or securing the payment of adequate compensation, cannot be doubted. As yet, appellant has not constructed a branch road at the point of the proposed crossing, but it is no doubt practicable to do so; and it is averred in the bill that in the judgment of its board of directors the time has come when a track should be built from low-water mark on the Allegheny river to the Pittsburgh, Ft. Wayne and Chicago Railway, by means whereof the company will have an outlet for its traffic to and from the river, as the Commonwealth had, when the canal was in operation. Assuming then that a transfer track will forthwith be constructed on the canal lot from the Pittsburgh, Ft. Wayne & Chicago Railway to low-water mark on the river, will the proposed crossing, by a viaduct at least twenty-one feet in the clear above low-water mark, supported by abutments located entirely outside the lines of appellant’s lot, materially interfere with the use and enjoyment of such transfer 'branch? The decided weight of the testimony is that it will not; and the finding of the master, concurred in by the court, is to the same effect. The decree is accordingly so framed that the appellee, in constructing its bridge across the lot in question, is required to place the same “ at such an elevation as to leave at least twenty-one clear feet between the lowest part of said bridge and the datum line of the city of Allegheny.” The decree further provides “that said bridge shall rest on abutments entirely astride of the lines of plaintiff’s property, and shall not be supported by any pier or other support resting on plaintiff’s land ; that defendant’s road and the whole width of ground taken at the crossing of plaintiff’s land shall not exceed twenty-four feet, and the length thereof shall be the width of plaintiff’s land, which is sixty-two feet, more or less.” And, in view of the future practicability or necessity for the appellant company to cross appellee’s road at grade, the court has also very properly secured to it that privilege, coupled with the right to make application to the court for a decree defining the terms and conditions upon which such grade crossing shall be constructed and maintained.

After a careful examination of the record we find nothing in the decree of which the appellant has any reason to complain.

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


text:
    Baldwin versus City of Philadelphia.
    1. A municipal ordinance is not a “ law ” within the meaning of article III. section 13 of the constitution of Pennsylvania. Hence, the councils of a city may by the passage of such ordinance increase the salary of a municipal officer during his term of office.
    2. Whether the chief commissioner of highways for the city of Philadelphia is a “public officer” within the meaning of said section of the constitution, not decided.

      November 12, 1881.
    Before Shaeswood, O. J., Merotjr, Paxson, Thunkky and Steeeett, JJ. Gordon and Greek, JJ., absent.
    Error to the Court of Common Pleas No 3 of Philadelphia County : Of July Term 1881, No. 33, Eastern District.
    Amicable action in debt, by William Baldwin against the City of Philadelphia to recover a sum alleged to be due plaintiff for salary as chief commissioner of highways for said city.
    The following case stated was submitted to the court:—
    “ By an ordinance of the councils of the City of Philadelphia, approved December 23d 1874, the Department of Highways, Bridges and Sewers for the city of Philadelphia was constituted, consisting of a chief commissioner and six assistants. The former at a salary of four thousand dollars per annum, and the latter each two thousand dollars per annum. The chief to be elected by viva voce vote of councils in joint convention, to serve for two years, and with power to appoint his assistants, whose duty was to superintend all work done on the bridges, culverts, sewers and highways in the city of Philadelphia, and enforce all ordinances relating to said department.
    “ By an ordinance of said councils, approved the twelfth day of December 1876, it was provided that ‘the chief commissioner of highways shall hereafter be elected for the term of three years.’ On January 1st 1877, the plaintiff was elected by city councils aforesaid, in joint convention, chief commissioner of the highways for three years from that date, and reelected in like manner on December 30th 1879, for three years. By an ordinance of said councils, approved the nineteenth day of December, 1877, making an appropriation for 1878, to said department, item one provides, inter alia: ‘ For salaries of the officers of said department: chief commissioner, three thousand six hundred dollars.’ The plaintiff’s salary was thus reduced during his term of office; and for the year 1878, and thereafter he received but thirty-six hundred dollars per annum. By ordinance” approved the thirty first day of December 1880, making an appropriation to the department of highways, it was provided, inter alia, in item one as follows: ‘ For salaries of officers of the department: chief commissioner, forty-five hundred dollars.’ The plaintiff’s: salary was thus increased during his term of service as chief commissioner of highways. It is admitted that if the increase made by the above ordinance was lawful, that then the sum of three hundred and seventy-five dollars was, and is due and owing by defendant to plaintiff as his salary for the month of January 1881, and that the city has refused to pay the same.
    “ It is agreed, that if the court shall be of opinion upon the-facts of this case that the plaintiff is not a public officer within the meaning of article III. section 18 of the Constitution of the state of Pennsylvania, so that his salary could be lawfully increased during the period for which he was elected, that then judgment shall be entered for plaintiff in the sum of $375, and if the court shall be of opinion that he is a public officer, and that his salary could not lawfully be increased as aforesaid, that the judgment shall be entered for plaintiff in the sum of 300.”
    The court entered judgment for the plaintiff, Baldwin, in the sum of $300.
    A similar case was submitted to the court, wherein William Dixey, the commissioner of the city property, was plaintiff and City of Philadelphia defendant.
    Ludlow, P. J., filed the following opinion:—
    “ Two cases have been submitted to the court, both of which involve the consideration of the same question, and both will be decided in the present opinion.
    “ The plaintiffs are officers of the City of Philadelphia: one is ‘ The Commissioner of Highways/ and the other ‘ The Commissioner of the City Property.’ Both have been elected by councils, are paid by virtue of ordinances legally adopted, both are serving for the terms designated by law, both receive moneys belonging to the municipality, and both, pending their respective terms of office, have, by virtue of the action of councils, been authorized to receive additional remuneration.
    “ Does the constitution of the Commonwealth prohibit this increase of salary ?
    “ That is the question now to be determined. By article III., § 13, of the Constitution, it is provided that “no law shall extend the term of any public officer, or increase or diminish his salary, or emoluments, after his election or appointment.’
    “ It is manifest that the decision of these cases turns upon the true meaning of the words £ public officer ’ in the constitutional provision.
    “ It is to be observed that “ The City of Philadelphia ’ is a municipal, and therefore a public and not a private corporation, and it exists by virtue of the sovereign authority of the Commonwealth. Th© corporate authority of the city was created for the benefit of the people, and the duties of its legislature, and of all its officers, are in one sense public duties.
    “ The great departments of the government, such as its ‘ Police’ and ‘Fire Departments/ ‘Commissioner of Highways/ of ‘ City Property/ and the like, exist for a public purpose, and wherever money is to be collected, it is to be used, not for pxivate gain or emolument, but for a pxxblic use.
    “ It does not necessarily follow that every person engaged in the service of the city, no matter how humble the employment may be, is a public officer, but it is, we think, very plain, that if the functions performed by an employé are of a public character; if he handles the public money, or performs public duties for the municipality, he is public officer.
    “ Indeed, upon this distinction rests the principle now settled, that the city is not liable for many acts of her police officers, firemen, surveyors, &c. See Elliot v. City, 7 Phila. Rep. 128; Freeman v. The City, 36 Legal Intell. 148 ; Rosenberry v. City, 7 W. N. C. 558.
    “ It may be admitted to be the law, that in the ‘ usurpation of a municipal or corporate office, no franchise or liberty of the Commonwealth is invaded or withheld,’ as was decided in Commonwealth v. Burrell, 7 Barr 37, and that ‘ a quo warranto directed to one holding the office of mayor of a municipal corporation may be prosecuted by a private relatorCommonwealth <o. Jones, 12 Penna. St. 367. l)oes it, therefore, follow that such officers as the mayor, city solicitor and receiver of taxes, are not public officers ? True, as was said in Kilgore v. Magee, 4 Norris 411, ‘this act (respecting the treasurer of Pittsburgh) concerns a municipality — a division of the -state for governmental purposes — and falls within the power of repeal and revision ;’ but that decision did not determine the question now before us, and only re-affinned in substance the old doctrine that the creature is not greater than the creator-, and is therefore the subject of legislative will.
    It seems to us that our appellate tribunal, in Commonwealth v. Evans, 24 P. F. Smith 139, after declaring that it is a difficult matter to distinguish betweeix a public officer and a person employed by the goveruxnent to perfox’rn some special service by contract, announced the doctrine when it declared, ‘We are of the opinion that all persons who by authority of law are entrusted with the X’eceipt of public moxxeys, through whose hands money due to the public, or belonging to it, passes on its way to the public treasury, must be so considered, by whatever name or title they may be designated in the law authorizing their appointment, and whether the sex-vice be special or general, transient or pennaxxent.’ Commonwealth v. Evans, it may be ax-gned, was a case which involved the liability of a sjxecial agent appointed by the governor; but, ixx principle what distinction can be made between that case and the present % The municipality is a public corporation, the moneys paid to it are xnoxxeys 2>aid for public purposes to ‘a division of the state for governmental purposes,’ and to officers who ax-e appointed to x-eceive it. All is done under the authority of law, and the money collected is designed to go into the pxiblic treasury.
    If the Legislature of the Commonwealth and her executive cannot by any legal device inflict upon the state officers, who shall be quasi private officers, can it be possible that the creature of the sovereign power, to wit, the municipality, may create officers, who, while handling the princely revenues of the first city in the Commonwealth, shall escape, upon the merest of technical constructions, the commands of the Constitution ?
    “ One other thought as to the construction to be placed upon the constitutional provision before we close this opinion.
    “ In Heydon’s Case, 3 Rep. 18, the judges resolved, “ that the true way to arrive at a sound construction of a doubtful statute is to consider the old law, the mischief, the remedy, and the true reason of the remedy.’ This principle has received the sanction of our highest tribunal (see Commonwealth v. Burrell, supra), and it is therefore our duty, in looking at a constitutional provision, to apply it.
    “The old organic law unfortunately neglected, in most instances, to guard the public treasury. The mischief was apparent, and the remedy applied had to be stringent. It is needless to refer to the reason, for that is so clear that it requires no comment. The old law was the former constitution, and the language of such an instrument, as well as the new one, is not to receive a technical construction, like a statute, but is to bo read and construed according to the natural and usual meaning of the words used. When we declare that the salaries of ‘the Commissioner of Highways,’ and ‘the Commissioner of City Property,’ cannot be ‘increased or diminished,’ after their election, and during the current terms, we only give a natural interpretation to the language of the constitution, which makes this provision applicable to ‘ public officers.’
    “ As the officers whose cases are now before us would receive but a reasonable and fair salary under the ordinances of councils, we regret in these particular cases the conclusion at which we have arrived, but we have but one duty to perform, and that is to enforce the sovereign will of the people, as embodied in the Constitution of the Commonwealth.’
    The plaintiff took this writ of error, assigning for error the entry of judgment on the case stated for $300, instead of for $375 ; and the decision of the court that the plaintiff was a public officer within the meaning of article III., § 13, of the Constitution of Pennsylvania, and that his salary as such could not be lawfully increased during the period for which he was elected.

      George B. Graham, for the plaintiff in error. —
    “ Public officers,” within the meaning of the constitution, are officers of' the state, appointed by the governor or elected by the people of the state: Commonwealth v. Burrell, 7 Barr 37; Commonwealth v. Jones, 2 Jones 367; People v. Devlin, 33 N. Y. 269 ; Conner v. The Mayor, 1 Sold. 285; Evans v. Commonwealth, 24 P. F. S. 124. The plaintiff is not such an officer, but is only the servant of a municipal corporation appointed by the city councils.
    The words of the constitution, “ no law shall be passed,” occurring as they do in an article on its face designed to direct and control the legislation of the state, and denominated “ legislation,” do not apply to an ordinance of council. An ordinance of council is not a law, and cannot, therefore, be within its meaning. The first section of this article, by its reference to “ either house,” shows the relation of the whole article to the Legislature of the Commonwealth. The 13th section of this article is no more applicable to councils than is the 1st. Justice Gordon, in the case of Kailroad v. Ervin, 7 W. N. C. 73, says that a “ law emanates from the supreme power. An ordinance is bnt a mere police regulation enforceable by lino or penalty.” The councils of Philadelphia cannot pass a law; hence the ordinance increasing the plaintiff’s salary, not being a law, is not within the meaning of the article in question.

      Charles li. McMichael and William Nelson West, city solicitor, for the defendant in error. —
    The language of the constitution is to be construed in a broad and popular rather than in a legal or technical sense, and when it declares “ no law shall extend the term of any public officer,” etc., the court is not warranted in confining the term “law” to a general Act of Assembly, or the term “ public officer ” to an officer elected by the people of the entire state. The term “law” in its broad sense includes an ordinance of councils, which is a law to the citizens of the municipality; and if the functions of a city official are of a public character, if he handles public moneys for the municipality and has charge of highways (which are public to all citizens of the state), he is a public officer in the constitutional sense: Donohugli’s Appeal, 5 W. N. C. 196 ; Alcorn v. City of Philadelphia, 8 Wright 352 ; Dean v. New Milford Twp., 5 W. & S. 545 ; Erie City v. Schwingle, 10 Harris 384; Freeman v. City of Philadelphia, 7 W. N. C. 45 ; Dillon on Munic. Oorp. §| 5, 22, 233; Commonwealth v. Evans, 24 P. F. S. 124; Southwark Ely .Co. v. City, 11 Wr. 314; Phila. & Trenton E. E. Co., 6 Whart. 25; Bx-anson v. City of Philadelphia, 11 Wr. 329.
   Mr. Justice Paxson

delivered the opinion of the court, November 17th 1881.

It appears, from the case stated, that when the plaintiff was first elected chief commissioner of highways for the city of Philadelphia, the salary of the office was $4,000 per annum. Subsequently, and during his first term of said office, the salary was reduced to $3,600. This reduction was acquiesced in by the plaintiff, no one doubting the power of councils to make it. During his second term councils increased his salary to $4,500, which increase the city declined to pay, and it forms the subject of this contention.

The court below held that the plaintiff was a public officer within the meaning of section 13 of article III. of the Constitution, which declares that, “No law shall extend the term of any public officer, or increase or diminish his salary, or emoluments, after his election or appointment.”

We need not discuss the question whether the plaintiff is a public officer, as it is not necessarily involved in the case. The error into which the learned judge below inadvertently fell was in applying the above section of the constitution to this case. The language of that instrument is: “ No law shall . . . increase or diminish his salary,” &c. The word “law” has a fixed and definite meaning. In its general sense it imports “ a rule of action ” ; in the particular sense in which we are now considering it, it means, “ a rule of civil conduct, prescribed by the supreme power in the state, commanding what is right, and prohibiting what is wrong.” Blackstone. A law is an emanation from the supreme power, and cannot originate elsewhere. It is a rule which every citizen of the state is bound to obey.

The ordinance of councils by which the plaintiff’s salary was increased is not a law, and therefore does not come within the constitutional prohibition. It is a mere local regulation for the city of Philadelphia. It has perhaps the force of law in the community to be affected by it, but it is not prescribed by the supreme power, it concerns only a subdivision of the state, and does not rise to the dignity of a law.

There is no ambiguity in this section of the Constitution. It is clear and explicit. But when we consider it in connection with the other portions of the 3rd article, there is no room for doubt. It is the article upon “ Legislation,” and is very elaborate. It contains thirty-three sections, and is throughout a restraint upon the powers of the general assembly. iHmposes numerous restrictions upon the mode by which’ laws shall be passed, and prohibits legislation upon a large variety of subjects. When, therefore, section 13 declares that “ no law' shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment,” the obvious meaning is that the General Assembly shall not pass such a law. There is nothing in the article, even by implication, that would justify us in extending the word “ law ’’ to the ordinances of a city. Such an interpretation would not be expounding the constitution ; it would be altering it.

The judgment is reversed and judgment is now entered in favor of the plaintiff for the sum of $875.


author: Mr. Justice Gordon

text:
    Wheeling, Pittsburgh and Baltimore R. R. Co., versus John Gourley and wife.
    1. The rule that where part of a contract is in writing and part in print, the written part will prevail in the construction thereof over the printed part, only applies where there is a conflict or repugnance between the different parts of the contract.
    2. An owner of land entered into articles of agreement with a railroad company whereby liin consideration of §450 payable as thereinafter stated with interest, in full for right of way and all claims for damages” he agreed to convey to the said railroad company, “ by a good and sufficient deed in fee simple with covenant of general warranty ” a certain strip of land. “Upon the delivery of said deed . . . at any time after the expiration of live years, the said . . railroad company agreed to pay . . . the said sum of §430.” The portions of the above agreement cited in Italics were written, and the rest printed. Held, that there was no conflict or repugnance between the different parts of the agreement and that the plain intent of the parties was to contract for a conveyance of the strip of land in fee.
    O. Where the owner of said land after entering into the above articles of agreement, conveyed the land to a third party, reserving to himself only the right to convey to said railroad company a right of way over said strip of land, Held, that he had put it out of his power to carry into execution his contract with the railroad company, and that therefore he could not bring an action of equitable ejectment, against said railroad company to enforce payment of the purchase money for said strip of land.
    4. A vendor under articles of agreement who has parted with the legal title to the land and who has neither possession nor the right of possession, cannot bring an action of equitable ejectment to enforce the payment of the purchase money.
    November 14, 1881.
    Before Sharswood, C. L, Merour, Gordon, Paxson, Trunkev, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Washington county: Of October and November Term 1880, No. 141.
    Equitable ejectment, brought December 28th 1878 by John Gourley and Mary Jane his wife in her right, against the Wheeling, Pittsburgh and Baltimore B. B. Company to enforce payment of the consideration money and damages for a strip of land thirty-three feet wide, occupied by the railroad of the defendant company. Plea, the general issue.
    On the trial, before Hart, P. J., the following facts appeared : — The plaintiff, Mary Jane Gourley, claimed as devisee of John Marshall, deceased. Prior to September 28th 1860, the Hempfield B. B. Company entered and built a railroad track on a tract of land owned by John Marshall. On that date, the following agreement was entered into between Marshall and the Hempfield B. B. Company. This agreement was partly printed and partly written, the written words being here given in italics:—
    “Memorandum of an agreement, made this 28th day of September, 1860, between John Marshall, of the county of Washington and State of Pennsylvania, of the one part, and the Hempfield Bailroad Company, of the other part.
    “ In consideration of four hundred and fifty dollars, payable as hereinafter stated with interest, in full for right of way and all claims for damages, the said party of the first part agrees and binds himself to convey to said party of the second part by a good and sufficient deed, in fee simple with covenant of general warranty, the following property, situated in the county of Washington, and state of Pennsylvania, that is to say, a strip'of land extending from the west boundary of Glaysville borough along the centre line of the said raib'oad, to the property of George W. Bodhin, being on the south side of Back alley, and in width thirty-three feet on each side of the centre tine in addition to the grounds occupied by the slopes of cuts and fills, but nan^rowing in width on the north side so as not to emhrance the alley. Upon the delivery of the said deed, duly acknowledged for record at any time after the .expiration of five yeans from this date, the said Hempfield Bail-road Company agrees to pay the said party of the first part the said sum of four hundred and fifty dollars, -with interest from date.

    “ Witness the signature and seal of said party of the first part, and the signature of the president and the common seal of said railroad company.
    “ C. M. Beed, President, [l. s.]”
    Pursuant to a decree of the Court of Common Pleas of Washington county, the Hempfield Bailroad with its appurtenances, was sold in 1871, and the purchasers organized the Wheeling, Pittsburgh and Baltimore Bailroad Company under the provisions of the Act of April 8th 1861 (Purd. Dig. 290, pi. 1), which company has since been in possession of the said strip of land. It did not appear that any tender of a conveyance or demand of the purchase money had been made from the date of the said agreement on September 28th 1860 until the bringing of this action on December 28th 1878. The plaintiffs then tendered and put on file a conveyance to the defendant conqiany of the right of way upon said strip occupied by the railroad.
    On February 3d 1866, the said John Marshall, by indenture of that date, for a valuable consideration granted and conveyed to A. J. Stillwagon in fee simple a large tract of land including the strip occupied by tlie said railroad. This deed contained the following reservation: — ■“ The present grantor, reserving to himself, his heirs and assigns, all damages arising from tlie running of the Ilempfield Railroad through the above described tract of land, also reserving tlie right to convey the right of way through said land to the said Ilempfield Railroad Company at any time said company may pay the said grantor the damage heretofore agreed upon.”
    The defendants presented, inter alia, the following point:—
    1st. That by virtue of the conveyance of John Marshall— from whom the present plaintiffs derive title — to A. J. Still-wagon, dated 23d February 1866, the fee simple in the land in dispute passed to said Stillwagon; and that consequently there can be no recovery of said land, or any part thereof, by the plaintiffs in the present action. Answer. — Marshall undoubtedly conveyed the fee simple to Stillwagon; but with a reservation of the right to convey tlie right of way to the Ilempfield company, which is all he stipulated to do in the agreement of 28th September 1860. Tins point is, therefore, refused.
    The court instructed the jury that the question of the construction of the agreement of September 28th 1860, between Marshall and the Ilempfield Railroad Company, upon which the case turned, was one of law for the court, and directed the jury to find a conditional verdict pro forma for the plaintiffs subject to the said question of law reserved.
    Verdict accordingly for the plaintiffs for the strip of land in dispute, to he released upon the payment by the defendant to the plaintiffs of the sum $976.50.
    Subsequently, after argument upon the point reserved, tlie court entered judgment upon the verdict, Hast, P. J., filing an opinion holding that although the said agreement of September 28th 1860 contained a printed stipulation for the conveyance by Marshall to tlie Railroad Company of the strip of land in question “ by a good and sufficient deed in fee simple with covenant of general warranty,” yet it was obvious from the written portions of the agreement that the intention of the parties was fixed upon the matter of the right of way and the question of damages, and not upon the fee simple title to the land; that Marshall understood himself to be contracting to convey in perpetuum the right of way on payment to him of the damages agreed upon, and that he apprehended at the time that the company understood the agreement in the same way. His Honor therefore, held, that, there being a repugnancy between the printed and written portions of the agreement, the latter, according to the well established rule, must prevail; and that Mrs. Gourley, Marshall’s devisee, being in a position, under the reservation in the deed from Marshall to Stillwagon, to convey to the defendant company a good title to the right of way, and having tendered and filed a deed therefor, was entitled to recover. The court, therefore, entered judgment on the j>oint reserved, and on the conditional verdict, in favor of the plaintiffs.
    The defendant thereupon took this writ of error, assigning for error the answer to the defendant’s point above given ; the decision of the court that the parties to the agreement of September 28th 1860 were contracting for the sale and purchase of an easement over, and not for the fee simple in the strip of land in question; and the entry of judgment as above.

      H. M. Dougan, for the plaintiff in.error. —
    To warrant the application of the rule as to the construction of agreements partly written and partly printed, adopted by the court below, there must be a clear repugnancy between such parts. In the agreement in question, there is neither repugnancy nor inconsistency. Marshall covenanted to do a single thing, viz., to convey to the Hempfield Eailroad Company, by a deed in fee simple with covenant of general warranty, the land described, in consideration of $450. The fact that this was recited to be “ in full for right of way and all claims for damages,” is in no way inconsistent with the agreement to convey in fee simple. The railroad had been located and constructed prior to the date of the agreement, and the damages referred to may well have been intended to cover the claim for such previous use. Whether this be so or not, the recital is insufficient to warrant a court of equity in assuming the intention of the parties to have been different from that clearly expressed in the operative words of the contract, and in enforcing such assumed intention either by a bill in equity or an equitable ejectment.

      Braden (with him Miller, and A. W. and M. O. Aeheson), for the defendants in error. —
    The court below properly construed the agreement of September 28th 1860, and it was not questioned that Marshall, in conveying to Stillwagon, reserving the right of way and claim for damages, acted in good faith. The reservation is broad enough to protect every right of the company to the strip of land, and Stillwagon makes no adverse claim. Marshall reserved the right to enter upon the strip of land in question, a,nd to take possession of it, and use it for the purpose of its railroad. This right is a very different thing from an ordinary casement. The use of the land is exclusive against the world. It is also perpetual — -that is, it has no limit to its duration except the will of the grantee. The public have no lawful access to it, or right over it, except at the option of its owner. 'What quality of a fee then does such an interest in land lack? None of any practical use. It is a mere dispute about words. An interest in land such as this is sufficient to fulfill .'Marshall’s agreement, and to support the action of ejectment : McCiinton v. Pittsburgh, Fort Wayne and Chicago Eailroad Co., 16 P. F. Smith 404; Turner v. Eeynolds, 11 Harris 199, 206; Ilazen v. Boston & Maine E. B. Co., 2-Gray 580; Harlan v. Moore, 9 Watts 362.
   Mr. Justice Gordon

delivered the opinion of the court, November 25th 1881.

We cannot agree with the court below in its construction of the contract of September 28th 1860, between Johu Marshall, the devisor of Mrs. Gourley, and the liempfield liailroad Company. The learned judge thought the printed parts of this instrument were inconsistent with, or repugnant to, the written parts thereof, and, therefore, in accordance with the rule laid down in Parsons on Contracts, and other authorities, adopted the latter to the exclusion of the former.

We have no fault to find with the rule to which reference is made, but we think it has no application to the case in hand. We can discover neither conflict nor repugnance in or among the different parts of this contract. It is indeed true that the main object of the company was to obtain the right of way for its railroad through Marshall’s premises, and it is so expressed in the agreement; but how this can be inconsistent with a grant of the fee of the land over which that way was to pass, we cannot understand. “In consideration,” reads the agreement, “of four hundred and fifty dollars, payable as hereinafter stated with interest, in full for right of way and all claims for damages, the said party of the first part agrees and binds himself to convey, to the said party of the second part, by a good and sufficient deed in fee simple, with covenant of general warranty, the following property;” and then follows a description of the land intended to he conveyed. Then, in order, comes this conclusion : “ Upon the delivery of said deed, duly acknowledged for record, at any time after the expiration of five years after this date, the said liempfield liailroad Company agrees to pay to the said party of the first part, the said sum of four hundred and fifty dollars with interest from date.” If this is not a specific agreement to convey in fee, we know not how such an instrument could be framed. Neither can we discover in its words, written or printed, the slightest ambiguity. The veiy easy and simple explanation of the contract is this: the railroad company wanted a right of way through Marshall’s property, and in order to secure that right beyond all peradventure, it bargained with him for the fee of the land over which it was to to pass, and so, in turn, Marshall agreed to convey, and that the use to which the company intended to put the land was set out in the contract does not in the least obscure its terms. But on February 3d 1866, Marshall deeded the land in controversy to A. J. Stillwagon, reserving only the right “to convey .the right of way through said land to the said Hempfield Bailroad Company at any time the said company may pay the said grantor the damage heretofore agreed upon.” But by this act Marshall deprived himself of the power of fulfilling his contract with Jhe company, for what he thus reserved was not sufficient to meet his agreement. This fact is, of itself, fatal to the plaintiffs’ case, for they ask the specific execution of a contract with the terms of which they, on part of the vendor, are unable to comply. But under a condition of things such as this, they cannot compel the vendee to the alternative of paying or turning out until they have tendered full compensation for the improvements which it has put upon the premises: Creigh v. Shatto, 9 W. & S. 82; Richardson v. Kuhn, 6 Watts 299.

But, beyond this, how can the plaintiffs maintain an equitable action of ejectment to enforce the payment of this purchase money, when the legal title is not in them ? or, for that matter, how maintain ejectment of any kind when they have ' neither title, possession, nor right of possession ? The theory on which our equitable ejectment is founded is, that the vendor may thus use his legal title to enforce payment of the purchase money due him as long as he retains a lien upon that title, but when he parts with it or loses his lien, he can no longer resort to this action. He may even hold the legal title and yet not be able to use it to enforce payment. As in Brown v. Metz, 5 Watts 164, where the covenant by the vendor was to convey upon the payment of a certain portion of the .purchase money, and, that portion being paid, it was held that he could not enforce the residue by ejectment. So, Thompson v. Adams, 5 P. F. Smith 479, is an example in point of the inability of a vendor to enforce payment by ejectment where the legal title has passed out of him, though he may still be entitled to the purchase money.

Again, let us suppose the defendant is compelled to turn out and abandon tbe land now occupied by it; cui bono ? — the plaintiffs gain nothing ; they clear the land of Stillwagon, the owner of the fee, of an incumbrance which otherwise it would be obliged to support, but leave themselves empty-handed. It follows, that the position of the plaintiffs, from any and every standpoint from which it can be viewed, is untenable.

The judgment is reversed.


author: Mr. Justice Creen

text:
    Appeal of the Pittsburgh & Connellsville Railroad Company.
    A. agreed witli a railroad company to construct and equip at his own cost a line of telegraph along the company’s road. The consideration for this work was “the maintenance and working of the wire by the railroad company when constructed,” and also thepayment by the company to A. of one half of all its earnings, subject to the stipulations of a certain agreement previously entered into by the railroad company with a telegraph company. Said last named agreement provided that the wire in question should be used for railroad and commercial purposes, and stipulated for a certain division of rates between the parties thereto. A. constructed the telegraph, and the railroad company operated it, paying for nine years continuously one half of all its earnings to A. in tile manner provided by the contract. At the expiration of that time the company ceased to use the wire for commercial purposes. A. thereupon filed a bill in equity praying for an account of moneys which had been or which ought to have been received by the company, for the payment of so much thereof to him as should be found due, and also for the ascertainment of damages due for breach of contract. Held, that there was an implied covenant on the part of the railroad company to continue to use the telegraph for commercial purposes, and that there had been a breach of such implied covenant; but Held, that the remedy of complainant for such breach was at law, and not in equity. Held, further, that equity could not take jurisdiction on the score of account, as the accounting must be purely unilateral and constitute a mere basis for ascertaining damages. Held, therefore, that sinco complainant had an adequate remedy at law and exhibited no special grounds of equitable relief, the bill must be dismissed.
    November 11 and 15, 1881.
    Before Siiarswood, O. J'., Mkrcub, Gordon, Paxson, Trunicev, Stebrett and Green, JJ.
    Appeal from a decree of the Court of Common Pleas of Fayette county: In Equity : Of October and November Term, 1880, No. 231.
    Bill in equity, by Bobert M. Modisette, et aL, against the Pittsburgh and Connellsville Bailroad Company. After answer filed, the cause was referred to an examiner and master, to whose report the defendant filed exceptions, which the court, after argument, dismissed, confirming the report, and a decree was entered in favor of the complainants. Among the exceptions thus dismissed was the following: 11 The master erred in not reporting that the complainants have a full, complete and adequate remedy at law for any supjmsed injury, and that the bill should be dismissed at the costs of the complainants.” The facts of the case, so far as material to the question of equitable jurisdiction, are fully stated in the opinion of this court.
    The defendant took this appeal, assigning for error, inter alia, the overruling of the above exception, and the entering of the decree in favor of the complainant.

      Welty MoCullogh {Johns MoCleme and W. PC. Oold/i'en with him), for the appellant.

      Edward Campbell (with him L. PL. Puby), for the appellees. —
    This is a case in which either a court of equity or a court of law would have jurisdiction, for while there may be a remedy at law it is not as appropriate, convenient or adequate as that which a court of equity may administer. In such case the objection to the jurisdiction in equity should be taken by demurrer, or plea to the jurisdiction. After answer, and the taking of voluminous testimony, and a master’s report thereon, it is too late, even if well founded, which we contend, in this case, it is not: Sun bury & Erie R. R. Co. v. Cooper, 9 Cas. 278; Sallade v. School Directors, 2 Pearson 48 ; Adams v. Beach, 1 Phila. Rep. 99 ; Penn v. Lord Baltimore, 1 Yes. Sr. 446.
   Mr. Justice Creen

delivered the opinion of the court, January 9th 1882.

The proceeding in this case was a bill in equity, which prayed for an account of moneys received, and which ought to have been received, by the defendant, and for the payment to the plaintiffs of so much thereof as might be found due to them, and also for the ascertainment of damages due for the breach of a contract.

The instrument upon which the proceeding was founded was a contract in writing made between James L. Shaw and the Pittsburgh and Connellsville Railroad Co. It is dated March 6th 1865, and, in substance, it provides that Shaw shall, at his own cost, construct and equip a line of telegraph along the company’s railroad from Connellsville to Uniontown. The consideration for this work is “ the maintenance and working of the line by the said railroad company when constructed, and also the payment by the company to Shaw of one-lialf of all its earnings, subject to the stipulations of a previous agreement made by the P. & C. R. R. Co. with the United States Telegraph Co. for the construction of the same line of telegraph, and dated March 1st 1865. This latter agreement provided that the line should be used for commercial and railroad business, and that the moneys received at Uniontown for messages over any line or lines of the U. S. Tel. Co. should be retained by the P. & C. R. R. Co., and the moneys received by the telegraph company for messages for Uniontown, and for any offices between Connellsville and Uniontown, at any of the telegraph company’s offices, should be retained by the telegraph company. There was also a provision giving the telegraph company the privilege of purchasing the line at any time they might choose to do so, upon terms stated. There was no limitation of time for the running of either contract. The practical effect of the agreement between Shaw and the railroad company was, that he was to build a telegraph line for the company, which they were to maintain, and pay him one-half of the receipts to which they were entitled under their contract with the U. S. Tel. Co. Undoubtedly a covenant would be implied on the part of the railroad company to do business on the line of telegraph, as that was the manifest purpose of the contract: Watson v. O’Hern, 6 W. 362; Lyon v. Miller, 12 Harr. 392; Koch & Balliet’s Appeal, 9 W. N. C. 343. It is equally clear, that for a breach of this implied covenant, or of the express covenant for the payment of one-lialf the earnings, Shaw would be entitled to compensation in damages in an action at law on the contract. Koch & Balliet’s Appeal, and cases cited supra.

Now the injury complained of in this case is, that the P. & C. R. R. Co., after having for nine years performed the contract on their part and paid the plaintiffs $2,912 as their share of the earnings, from and after April 1st 1874 excluded all commercial business from the telegraph line, and neglected and refused to make any compensation for the use of the line. The bill further charges that the railroad company has realized large profits from the use of the line, but refuses to pay to the plaintiffs their share of the same, and by excluding from the line the commercial business, has rendered the line valueless to the plaintiffs. There is some apparent incongruity in these last averments, but that is quite immaterial, since, so ‘ far as the rights of the plaintiffs are concerned, it is only essential to consider the actual breaches of the covenants expressed or implied in the agreement between the parties. It may be mentioned, though it is not material to the discussion, that the rights of Shaw under the contract in question were duly passed to the present plaintiffs by assignment, and also that, by a subsequent agreement in 1867, between the P. & C. R. R. Co. and the West. Union Teleg. Co. which had become vested with the rights and property of the United States Teleg. Co., some modification was made in contracts existing between the P. & C. R. R. Co. and the United States Teleg. Co. There is nothing, however, in this latter contract that can affect any matter at issue in the present contest, as it would not be competent for the defendant to affect any rights of the plaintiffs by any agreements with other parties unassented to by the plaintiffs.

Eeturning to the consideration of the principal contract involved in this controversy, we find that the injury complained of is the non-payment of moneys which would be due to the plaintiffs, if the defendant continued to maintain and work the line. For the time that it was worked according to the agreement, the moneys actually received were in good faith divided. The plaintiffs have no ownership of the telegraph line. They have no right to participate in working it. The defendant has the exclusive right to take the earnings, and when they are received they are the sole property of the defendant. After their receipt, arises the obligation, to pay to the plaintiffs a sum equal to one half of the amount received. Surely, this is but a bare pecuniary obligation, the breach of which is fully and adequately compensated by a recovery in damages of the amount which ought to be paid.

And so also, if the defendant fails to carry on the business according to the agreement, and by reason of such failure, does not receive the moneys which would have come to hand, had the business actually been conducted, here again is but a breach of ■contract, which can be compensated in damages. In either or any aspect of the case, therefore, the remedy of the plaintiffs is adequate and ample by action at law. In the present case there is no element of specific performance, and a decree to that effect could not have been made, if it had been asked. No such prayer, however, is contained in the bill. There is no matter of fraud, mistake, accident, trust, discovery, or mutual account, in the bill or in the case, and hence we are unable to perceive any species of equity jurisdiction, upon which a decree can be founded. The only accounting that can enter into the case is unilateral, and even that is only a basis for ascertaining damage. The authorities applicable to. the controversy are quite familial1, and only a brief reference to a few of them is required. In Gloninger v. Hazard, 6 Wr., on p. 401, we said : “ There is no doubt of our concurrent jurisdiction with courts of law, in matters of account, where the accounts are mutual and complicated, and also where they are all on one side, but discovery is sought, and is material to the relief. . . . Hut on the other hand, where the accounts are all on one side, and no discovery is sought or required, courts of equity will decline taking jurisdiction of the cause.” See also 2 Norr. 441; Kauffman’s Appeal, 5 P. F. Smith 383. A complainant averred that he agreed to sell a lot to the defendant, he to pay at the same rate as he paid others, and that lie paid others at a rate which he refused to pay to complainant, and prayed for specific performance. Hela, that the agreement was simply for the payment of money, and complainant had an adequate remedy at law: Koch & Balliet’s Appeal, 9 W. N. C. 343. Where a right to mine is granted in consideration of a royalty reserved, the law implies a covenant by the grantee to work the mine with diligence so that the grantor may receive the contemplated compensation; but in the absence of special grounds of equity jurisdiction, such covenant will not be specifically enforced in'equity, an action at law for damages being an adequate remedy. See also Grubb’s Appeal, 9 Norr. 228.

It is unnecessary to prolong the citations. We are of opinion that the plaintiffs have an adequate remedy at law, ana that there are no special grounds of equitable relief exhibited. In such cases there is no jurisdiction in equity to entertain the complaint or make any decree.

Decree reversed, and bill dismissed at the cost of the appellees.


text:
    Commonwealth, for use, etc. versus Walter.
    1. A sheriff cannot relieve himself from liability for the proper distribution of the proceeds of real estate sold by him under an execution, in any oilier manner than by paying the said proceeds into court.
    2. The mere payment by him of said proceeds to the prothonotary of the court, without the intervention and knowledge of the court itself, is not such a payment into court as will relieve him from liability.
    3. Where a sheriff desires to pay money into court, the proper course is for him to appear, either in person or by attorney, and obtain the-leave of the court to pay the money. He may then deliver it to the prothonotary as the officer and representative of the court, acting under its authority, subject to special or standing orders in regard to the safe custody and ultimate disbursement of the fund.
    November 15th 1881.
    Before Siiarswood, O. J., Merour, Gordon, Paxson, Trunkey, Stbrrett and Green, JJ.
    Error to the Court- of Common Pleas of Butler county: Of October and November Term 1881, No. 262.
    Debt on the official bond of George Walter, sheriff of Butler county, by the Commonwealtli, for use of the Oil City Savings Bank, against George Walter, sheriff, and Jacob Keck and others, sureties on the said bond.

      Upon the trial, before McJunkin, P. J., the jury, under the instructions of the court, found a special verdict, setting forth the following facts: — On July 10th 1877, sheriff Walter received a writ of testatum fi. fa., directed to him, issued- out of the Court of Common Pleas of Yenango county, upon a judgment there obtained by Reynolds, Lamberton & Co., against R. Chisholm. By virtue of said writ, Sheriff Walter levied on certain real estate belonging to Chisholm and subsequently sold the same for the sum of $500. He acknowledged the deed in the Court of Common Pleas of Butler county. On October 16th 1877 he returned the said writ into the Common Pleas of Yenango county, and on the same day he paid to the prothonotary of the said Court of Common Pleas of Yenango county the said sum of $500, less his costs. On the same day the said prothonotary paid over the said money to the attorney of the plaintiff in the writ of testatum fi. fa.
    Sheriff Walter had no actual notice of the existence of any other lien on said fund in Butler county. The records of Butler county showed, however, that the Oil City Savings Bank had obtained a judgment in said county June 1st 1874 against the said R. Chisholm, which judgment was a first lien on the real estate sold under the said testatum fi. fa.
    Under the above facts, the jury found a verdict in favor of the Commonwealth for the penal sum or amount of the bond, $8,000, and in favor of the Oil City Savings Bank for $428.65 damages; subject to the opinion of the court upon the question reserved, viz. : “Whether or not the payment by the sheriff of the proceeds of said sale to the prothonotary of Yenango county, was, under the facts in the case, a good payment, and a protection to him and his sureties from liability in this action.”
    The court, subsequently, after argument, entered judgment or the reserved question for the defendants, non obstante veredicto. The plaintiff thereupon took this writ of error, assigning for error the entry of said judgment.

      F. W. Fays {J. F. McJunlcin with him), for the plaintiff in error. —
    The voluntary payment by the sheriff to the prothonotary of Yenango county is no protection to the sheriff in this action. Where a sheriff makes a sale of real estate under a testatum writ of execution, he may elect to acknowledge his deed, and pay the fund for distribution, either in the court of the situs, or in the court whence the testatum writ issued: Borlin’s Appeal, 9 W. N. O. 545. Here the sheriff acknowledged the deed in the court of the situs, viz., Butler county, but he did not pay the fund either into that court or into the court of Yenango county. Payment to the prothonotary, without more, is not payment into court. It was in effect a distribution by the sheriff to the plaintiffs in the testatum fi. fa., through the hands of the prothonotary of Venango county. In such case, as in all other cases of the distribution of the proceeds of a sheriff’s sale of real estate by the sheriff, it is on his own responsibility. lie may undertake to distribute the fund, but if he does, he is bound to apply it to existing liens of record in their order of priority : Mather v. McMicbael, 1 Harris 302 ; Luce v. Snively, 4 ‘Watts 399; In re Bastían, 9 Norris 476; Franklin Twp. v. Osier, 10 Norris 163.

      C. Walker {F. M. EaMmam, with him), for the defendant in error. —
    The command of the testatum fi. fa. required the sheriff to return the writ, with the money, “ before the judges of the Court of Common Pleas of Venango county.” He complied with this command by returning the writ and paying the money to the prothonotary of that court, in his official capacity as depositary of the court. The sheriff thereby discharged himself of all liability; and the said prothonotary and the sureties on his bond thenceforth became responsible for its application: Deckert’s Appeal, 5 W. & S. 344 ; McDonald v. Todd, 1 Grant 18. The sheriff, in paying the money to the prothonotary, followed tbe universal practice in this state in writs of testatum execution, and it would be inequitable to hold him personally liabile to one who failed to notify him of his claim.
   Mr. Justice Sterrett

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

After the defendant Walter, as sheriff of Butler county, acknowledged and delivered his deed to the purchaser for the land sold on the testatum fieri facias, and received the purchase money therefor, he had an undoubted right to pay the same either into the proper court of his own county or into the court of common pleas of Venango county, whence the writ issued : Borlin’s Appeal, 28 P’g. L. J. 412. By so doing, he would have avoided all risk. It would then have been the duty of the court into which the money was paid, to distribute the same to the parties entitled thereto. In no other way could the sheriff relieve himself from responsibility. He had the right to distribute it himself; but, if he undertook to do so, he incurred the risk of misapplication and consequent liability on his official bond: Luce v. Snively, 4 Watts 396; In re Bastian, 9 Norris 472; Franklin Township v. Osler, 10 Norris 160. Instead of paying to the party entitled, or into either court, the sheriff returned the writ and paid the money to the prothonotary of Venango county, who in turn paid it to the plaintiff in the testatum, to the prejudice of the Oil City Savings Bank, which had the first lien on the land out of which the fund was realized. This was all done without the intervention or even the knowledge of either the court of the situs, or the court whence the writ issued. In no proper sense of the term can this be considered a payment of the money into the Court of Common Pleas of Yenango county. To sanction such a practice would be productive of great mischief. If the sheriff has money,.which, in obedience to the command of his writ, he wishes to bring into court, it is his duty to have the matter brought to the attention of the court, so that it may be fully advised, and take such action as may be proper in regard to the distribution of the money and its safe keeping in the meantime. The recognized and proper practice in such cases is for the sheriff or his deputy to appear in person or by attorney, and, by leave of court first obtained, pay in the money. This being done, the prothonotary, as the officer and representative of the court, acting under its authority, takes charge of the fund subject to the special or standing orders of court in regard to its safe custody and ultimate disbursement. This is the only way in which money made on execution process can regularly go into the hands of the prothonotary. His authority to receive and receipt for money in any other way is quite restricted. In Watson v. Smith, 2 Casey 395, it was held that as a matter of public convenience, sanctioned by an almost universal practice, a suitor may lawfully pay, to the prothonotary, fees due to a former incumbent of the office; and as a necessary consequence his sureties are liable therefor. But, the prothonotary has no power to receive payment of a judgment, and he who makes such payment does so in his own wrong: Tompkins v. Woodford, 1 Barr 156. And, in Wells v. Baird, 3 Barr 351, it was held that money paid to the prothonotary and entered by him, on his docket, as paid into court, will not affect the right of the plaintiff to have the judgment revived.

There appears to be no question as to the bona tides of the sheriff in this case, and it is to be regretted that he and his sureties must be adjudged liable, as for a misapplication of the money; but it is the inevitable result -of his failure to relieve himself of responsibility in either of the modes recognized by law.

Judgment reversed, and judgment is now entered on the verdict against the defendants, in favor of the Commonwealth for $8,000, penalty of the bond, and in favor of the Oil City Savings Bank, $128.35 damages.


author: Mr. Justice Trdnkey

text:
    Humphrey, Executor, etc. versus Poor District of Worth Township.
    1. A., in consideration of the conveyance of a tract of land to him by B., agreed to support B. during her life, and to give her a Christian burial. B., afterwards became a pauper and was provided for by the overseers of the Poor District in which she lived. A. thereupon agreed with said overseers to commute and compromise with them his contract witli B. for the sum of $ 1,500, which was to be paid in annual installments of $150 each. B. afterwards died, leaving in the hands of the overseers a portion of one of the yearly installments paid by A. Suit having been brought by B.’s executor against said overseers to recover the amount thus left in their hands, Held, that B. not being a party to the contract of commutation between A. and the overseers, and not bound in any way thereby, her representative was not entitled to set up any rights thereunder; and that hence defendants were entitled to judgment. '
    ' 2. Who was entitled to the fund in question, and also to the balance of the $1,500 unpaid by A., not decided.
    November ICtli 1881.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to tlie Court of Common Pleas of Butler county: Of October and November Term 1881, No. 316.
    Assumpsit, by John Humphrey, executor of Eleanor Hines, deceased, against the Poor District of Worth Township, to recover the sum of $139.40, being a balance admitted to be in the defendant’s possession under the following circumstances :
    In 1879, Eleanor Hines, an aged and infirm woman, conveyed to one Wimer certain real estate, in consideration whereof the said Wimer entered into a written agreement with her to support her during her life and to give her a Christian burial. She afterwards left his house and became a charge upon the Poor District. Wimer then agreed with the overseers to compromise and commute, with them, his contract with Mrs. Hines for the sum of $1,500, payable $150 each year, for which he gave them his bond, and they released him from his obligation under his contract with Mrs. Hines. After tlie death of Mrs. Hines, and her burial by the overseers, there remained in their hands out of the moneys received by them from Wimer tlie said sum of $139.40, to recover which sum her executor brought tins suit.
    The plaintiff presented, inter alia, the following point: 2. That under all tlie proofs, the defendants were the trustees of Nellie Hines for said amount of fifteen hundred dollars, the amount of Samuel Wimer, Jr.’s, bond to the defendant, for the uses pointed out by law, to wit: To defray the expenses incurred in her support and burial, then to pay the balance over to her legal representative, the plaintiff executor, and therefore the plaintiff must recover. Answer. We refuse to instruct you, as prayed for in this point. This point involves a question of law, upon our view of it, and refusing this point under the circumstances, your verdict must necessarily be a verdict for the defendant.
    Yerdict accordingly for the defendant, and judgment thereon. The plaintiff took tins writ of error, assigning for error the refusal of the above point and the instruction to find for the defendant.

      Lewis Z. Mitchell (Charles McCandless with him), for the plaintiff in error. —
    Under the Act of June 13th 1836, the overseers had the right to enforce the pauper’s rights under her contract with Wimer. Their act in compromising her rights was within their discretion. They did no more than the pauper had a right to do. The commutation money thereupon became part of her estate, of which the overseers became her trustees for the purposes provided by law, viz., to support her, and after her death pay over the balance in their hands to her representatives. If the fund does not belong to her estate, whose is it ? It cannot belong to Wimer, nor to the Poor District.

      J. M. Thompson (G. W. Fleeger with him), for the defendant in error.
   Mr. Justice Trdnkey

delivered the opinion of the court, November 25th 1881.

In consideration of the conveyance of a tract of land by Eleanor Hines, Samuel Wimer obligated himself, “for the maintenance of said Eleanor Hines her natural lifetime and give her a Christian burial.” Subsequently, she became a pauper in the district of Worth and was provided for by the overseers of the poor. On April 5th 1875, Wimer gave his bond to said overseers conditioned for the payment of §1,500, in annual installments of §150; and they gave him a release from all liability for the maintenance of Eleanor Hines. The overseers of the poor had a statutory right to compel Wimer to pay them the expenses of maintaining the pauper, for he owed her that debt; but they had no power to release him from the obligation of his contract. She was not a party to the release. She might have released him, but did not. Had she ceased to be a charge on the district, while living, she could have recovered from Wimer the value of her maintenance as if the release had not been given. All he owed to her was maintenance during life and burial at her death. Her heirs, or legatees, liave no claim on him ; there is no equity in them as respects his contract with the district. Were she living and not a pauper, she would have no right of action against the Poor District, and her executor has none. The district supported her and Wimer paid the cost.

If the pauper had property which came into the hands of the overseers they could use it so far as necessary to reimburse their outlay on her behalf, and would be bound to pay any ballance remaining to her representatives. In case a person, liable for her support, placed money in the hands of the overseers for that purpose, the overplus, equitably, would belong to him; there is no reason why it should be considered a part of her estate. Upon a contract merely for support and funeral expenses of a person, the total amount which shall be paid is very uncertain, but it cannot lawfully be made to exceed the value of the fit support and burial of such person. Nothing will be left out of such contract for heirs or legatees. Compromises by trustees inure to the benefit of those for whom they act; but Eleanor Hines had no part nor interest in this compromise, and the overseers did not pretend to act for her. They acted for the district in the enforcement of her contract with Wimer for her support. The executor has as little right to recover as if Wimer, in the performance of that contract, had placed the money in the hands of the overseers to be used for her maintenance. We forbear expression of opinion respecting the right to the money on hand, or which remains unpaid upon Wimer’s bond, as between him and the Poor District.

It is unnecessary to notice a point which, apparently, the defendant did not press in the court below, namely, that the plaintiff should have given security to indemnify the overseers before bringing suit.

The assignments of error cannot be sustained.

Judgment affirmed.