author: Paxson, J.:

text:
    October and November Term, 1884,
    No. 129.
    November 3, 1884.
    Hespenheide’s Appeal.
    1. The Pittsburgh, Fort Wayne and Chicago railroad, which crossed plaintiff’s land, was leased by the Pennsylvania Railroad Company, which subsequently assigned the lease to the Pennsylvania Company. The Pennsylvania Company, under its act of incorporation, had the power “to enter and occupy the lands of individuals * * * for the purpose of erecting, constructing, maintaining, or managing any public works,” &e. Held, that as the right of eminent domain is, in terms, conferred upon the Pennsylvania Company by its charter, it has the right to take plaintiff’s land for the purpose of widening the Pittsburgh, Fort Wayne and Chicago railroad.
    2. Semble, per Master. — The right to exercise the power of eminent domain does not pass to the lessee in the absence of clear statutory provision expressly authorizing it.
    Before Me roue, C. J., Gordon, Paxson, Tbunkey, and Clark, JJ.
    Sterrett and Green, JJ., absent.
    Appeal of H. F. W. Hespenheide from the decree of Common Pleas, No. 1, of Allegheny County, dismissing complainant’s bill and confirming the master’s report.
    Bill in equity, by II. F. AY. Hespenheide, against the Pennsylvania Company, lessees, operating the Pittsburgh, Fort AVayne and Ohioago railway, setting forth:

      First. That he is the owner in fee of a certain tract of land situate in Killbuck township, county of Allegheny, and.State of Pennsylvania.

      Second. The Pittsburgh, Fort AVayne and Chicago Railway Company, successor of the Ohio and Pennsylvania Railroad Company, by articles of merger and consolidation concluded 2d day of July, A. D. 1856, became the owner of and operated a line of railroad over and across the property of complainant (said railroad being of double track) until the date of lease hereafter mentioned.

      Third. That the Pennsylvania Company was duly incorporated by the Legislature of Pennsylvania on the 7th day of April, A. D. 1870: P. L., 1870. page 1,025, a copy of which act is attached hereto and made part hereof.

      Fourth. That said Pittsburgh, Fort AVayne and Chicago Railway Company, on the 7th day of June, 1869, made, executed, and delivered'to the Pennsylvania Railroad Company (also a corporation of Pennsylvania) a lease of its railroad and' property, and under such lease the said Pennsylvania Railroad Company became entitled to operate said railway.

      Fifth. That on the 1st day of April, A. D. 1871, the Pennsylvania Railroad Company, by assignment of that date, transferred and set over the said lease to the said defendant, the Pennsylvania Company, and since that date the said railway has been run and operated by the said Pennsylvania Company as lessee.

      Sixth. That by and under the statutes of the State of Pennsylvania authorizing the leasing of connecting lines of railroads, no power of eminent domain existing in the lessor can be transferred to or be exercised by the lessee, and the only right that passes is the right to operate the railroad, as your orator is informed and believes:

      Seventh. That on the . . day of . . . , A. D. 1882, the said defendant company, claiming the right to act under the provisions of an act of assembly, entitled “An act to enable railroad companies to straighten, widen, deepen, and otherwise improve their lines of railroad,” &c., approved 17th of March, 1869, located, marked, and established an additional right of way along said railway, and outside the right of way owned by said lessor, and is now attempting to condemn and take the same by proceedings under the eleventh section of the act of Assembly approved 19th February, 1849, and, among others, has located an additional right of way over the property of complainant, and, in pursuance of the act of the 9th day of April, 1856, has filed a bond covering the location over the property of complainant in the Court of Common Pleas, No. 1, of Allegheny county, which bond has been approved and filed1; and the defendant company, by its engineers, contractors, and workmen, has entered upon and taken possession of said property, and are about to make the road-bed for the additional track sought to be constructed under the act of Assembly aforesaid.

      Eighth. Your orator is informed and believes that said defendant company, neither as lessee of said Pittsburgh, Port Wayne and Chicago Railway Company, nor under its owm act of incorporation, has the right to exercise the power of eminent domain, and is, therefore, a trespasser upon the lands of your orator, and unless restrained by writ of injunction, your orator will be irremediably damaged.
    And praying, inter alia, the Court to issue an injunction restraining the defendant company, its contractors, and workmen from interfering with the property of complainant, and to decree that said Pennsylvania Company has no right to exercise the power of eminent domain as the lessee of the Pittsburgh, Fort Wayne and Chicago railway, nor any such right under its own act of incorporation.
    The answer of defendant set forth :

      First. The averments of the first five paragraphs of said bill are true. Said lease, however, of the Pittsburgh, Fort Wayne and Chicago railroad, referred to in the fourth paragraph of said bill, includes, in addition to the railroad and property therein named, all rights, privileges, and franchises therein named, relating to the said demised railway, or to the construction, maintenance, use, and operation of the same. Defendant prays that the said lease may be referred to as part of this answer, to all intents and purposes, and with like effect, as if the same were embodied at length.

      Second. The averment of the sixth paragraph of said bill defendant denies, and charges that the contrary thereof is true.

      Third. The averments of the seventh paragraph of said bill are true, except in this, that the defendant company has not located, marked, and established an additional right of way along the Pittsburgh, Fort Wayne and Chicago railway, and outside of its right of way, either upon the property of the plaintiff or upon any other property. Nor is it now attempting to condemn and take from the plaintiff, or any other party, an additional right of way. The fact is, that the defendant company, under competent authority, is simply straightening, widening, enlarging, and otherwise improving the Pittsburgh, Fort Wayne and Chicago railway, pursuant to a resolution of the board of directors of defendant company duly passed, wherein is expressed the bona fide opinion *of the board of directors of defendant company that such improvement of said line is necessary for better securing the safety of persons arid property, and increasing the facilities and capacity for the transportation of traffic thereover. And defendant further shows that the necessities of a constantly increasing business over said-railway renders absolutely essential the making of said improvements in the interest of the public, and that in the absence thereof said defendant company cannot answer the purposes of its creation, and fulfill the obligations by law imposed upon both it and the said Pittsburgh, Fort Wayne and Chicago Railway Company. And defendant company further shows that it is under obligations to make said improvements by reason of the terms of the said lease, hereinbefore referred to, wherein and whereby it is (inter alia) provided that said defendant company, at the expiration thereof, shall deliver up and surrender to the said Pittsburgh, Fort Wayne and Chicago Railway Company the said demised railway and premises in at least as good order and condition as the same were when delivered under said lease, and with such conditions, betterments, and improvements as shall have been made thereto.

      Fourth. The averments of the eighth paragraph of said bill defendant company denies, and avers that both as lessee of the said Pittsburgh, Fort Wayne and Chicago railway, and under its own act of incorporation, id has the right to exercise the power of eminent domain.
    The Court referred the case to N. S. Williams, as master, who found, inter alia, the following facts:
    That the defendant company, in pursuance to a resolution passed by its board of directors, dated November 30, 1881, are now engaged in carrying out certain improvements on the line of the Pittsburgh. Fort Wayne and Chicago railroad between Allegheny City and Dixmont station; said improvements consist, inter alia, “in the enlarging of all present outer depot yards and shop facilities, the construction of two additional tracks from the present outer depot to Dixmont, the providing of local station facilities at nearly all the local stations, additional side-tracks, and the re-location of nearly all the station-houses for the better safety of the passengers in operating the four-track system of road,” and to provide facilities to accommodate the increased traffic of the road.
    The taking of plaintiff’s property is in connection with this improvement. The strip between the present roadbed and the river is to be used in straightening the line of the road and for additional tracks; the triangular piece, on the hillside of the road, is to be used in connection with what is left after the line is straightened for a station-house at that place, so that with the old right of way, and when the present appropriation from plaintiff is completed, the defendant company at that point will have four main tracks, station-house and grounds, a side-track for local accommodation, a tram-way for approach on side-tracks, station platforms, and an approach to the station from the west side across the creek. That these improvements are necessary in order to accommodate the increased traffic of the road, and that this appropriation is necessary and essential to the carrying out of these improvements. That at the time of the lease above referred to the Pittsburgh, Fort Wayne and Chicago railroad was a double-track road between Allegheny City and Dixmont, and that when this appropriation is completed it will be a four-track road between these points. That so far as plaintiff is concerned it will virtually amount to the construction of a new road ; the original right of way of said road being sixty-six feet in width, and when this appropriation is made it will be one hundred and twenty-one feet- in width on the eastern boundary of plaintiff’s land, and on the western boundary about one hundred feet at grade. That the Pittsburgh, Fort Wayne and Chicago railroad connects at Pittsburgh with the Pennsylvania railroad. That so far as the terms of the lease made by the Pittsburgh, Fort Wayne and Chicago Railroad Company to the Pennsylvania Railroad Company, dated June 7, 1869, to take effect July 1, 1869, are concerned, they are sufficiently ample to cover this contemplated improvement, since it is therein provided, inter alia, “including also all locomotives, &c., and all rolling-stock and equipment belonging to the said party of the first part, and all rights, privileges, and franchises connected with or relating to said demised railways or either thereof, or to the construction, maintenance, use, or operation of the same: Prometed always, Jiowever, That nothing herein contained shall operate to grant or demise, orbe construed to include the franchises to be a corporation,” &c. Article fifth of said lease being as follows: “ The party of the second part shall and will, at its own proper cost and expense, and without deduction from the rent aforesaid, operate and run the said demised railways, at all times during the said term, in the same manner as the party of the first part, as the owner thereof or otherwise, is now, or shall, or may at any time hereafter be required by law to do, and the said party of the second part shall and will, at its own proper cost and expense, and without deduction from the rent aforesaid, at all times during the said term, maintain, preserve, and keep the railways and premises hereby demised and every part of the same in thorough repair and working order and condition, and supplied with rolling-stock and equipment, so that the business of said demised railways shall be preserved, encouraged, and developed; and that the same shall be ai all times done with safety and expedition, and the public be accommodated in respect thereto with all practicable conveniences and facilities, and that all future growth of such business, as the same may arise or be reasonably anticipated, shall be fully provided for and secured. ■ And the party of the second part hereby promises and agrees to and with the party of the first part that the said party of the second part shall and will, at its own proper cost and expense, and without deduction from the rent aforesaid, from time to time whenever needed during the term aforesaid, do or cause to be done, to and upon the said demised railways and premises, any and all repairs, replacements, and renewals, and, also, in manner expressed in the sixteenth article of these presents, any and all additions, constructions, and improvements, which may be reasonably required for the purposes aforesaid, and provide thereon such rolling-stock and equipment, and other facilities, as shall or may be reasonably required for the purposes aforesaid. And that the said party of the second part shall and will use all reasonable efforts to maintain, develop, and increase all the business of the said railways.”
    Article sixteenth of said lease provides, inter alia, that “the party of the first part hereby agrees that for the purpose of enabling the party of the second part to meet the obligations of the party of the first part to the public, by making, from time to time, such improvements upon and additions to the said Pittsburgh, Fort Wayne and Chicago railway, in the extension of facilities for increased business, by additional tracks and depots, shops and equipments, and the substitution of stone or iron bridges for wooden bridges, or steel rails for iron rails, &c.”
    Article twentieth of said lease provides, inter alia, “ that the said party of the second part-hereby covenants, promises, and agrees to and with the said party of the first part, that at the end of the term, or other sooner determination of this lease, the said party of the second part shall re-deliver and surrender up to the said party of the first part, its successors and assigns the said demised railways and premises, in at least as good order and condition as the same shall be delivered to the said party of the second part under this lease, and with such additions, betterments, and improvements as shall have been made thereto, &c.”
    The master also found that the Pennsylvania Company had express authority to take an assignment of the lease, section third of its charter providing, inter alia, as follows: “To assume, to become responsible for, execute, and carry out any contracts, leases, or sub-leases, made by any company to or with, any other company or companies, individuals, or firms whatsoever.” The defendant company may, therefore, be considered as lessee, and it does not become necessary to consider the assignment itself; sufficient to say that it bears date June 29, 1884, and provides, inter alia, 'that the defendant company is to operate or run the said railway in the same manner as the said Pittsburgh, Fort Wayne and Chicago railway, as the owner thereof, or otherwise, is or shall or may at any time hereafter be required to do.
    The master reported, inter alia, as follows : ‘£ The sole question raised by the bill, answer, and evidence in this case is whether the defendant company, either (1) as assignee of the lease made by the Pittsburgh, Fort Wayne and Chicago Railroad Company, or (2) by virtue of its own act of incorporation, possesses the power of eminent domain? The plaintiff here contends that the defendant company does not, either as assignee or in its own right, possess the right to exercise the power of eminent domain.
    “ That the Pittsburgh, Fort Wayne and Chicago Railway Company would have had authority to make this appropriation had it not executed the lease hereinbefore mentioned, cannot be denied, since the act of March 17, 1869.
    “That the power of eminent domain passes to the lessee, is said to have been decided in the case of Sly v. the Pennsylvania Railroad Company, 15 P. F. Smith, page 209, wherein it is said: £ By virtue of a simple lease, therefore, an artificial as well as a natural person would succeed to all the rights, liberties, and franchises, and subject to all the limitations imposed on the lessor. The lessee is the assignee, for a term or period, of the lessor, his. bailiff to hold possession for him : Co. Litt., page 239 b, Note 2. It is so as to natural persons, why not as to corporations, unless the law has made a difference when it authorized the lease? The lessee of a railroad corporation must necessarily be bound by all the prohibitions and limitations contained in the charter of the lessor, and, on the other hand, must be entitled to all the rights and. franchises. The Legislature, by authorizing another corporation to take such lease, have, by necessary implica^ tion, conferred them.’
    “In this case, the question was mainly the right of the lessee to charge higher rates for the conveyance of passengers than the charter of the lessee authorized it to do, and the Court held that this was to be determined by the charter of the lessor, and, as there was no restriction in the lessor’s charter, the Court held that the restriction in the lessee’s charter did not apply. Under the acts of Assembly above cited, authorizing companies owning connecting railroads to enter into contracts or leases in respect to the use, management,'or operation of any such railroad, it would clearly seem sufficient to give the lessee power to fix a tariff of rates where there was nothing in the lessor’s charter to the contrary. While the words used by the Court are very broad and comprehensive, the master is of the opinion that they were used in regard to the case under consideration, and, in effect, simply mean that such rights or franchises as the lessor is expressly, or by necessary implication, authorized to transfer, pass to the lessee; that, under the authorities above cited, and under the following, to wit: Cooley’s Constitutional Limitations, page 396, and 21 Pennsylvania State Reports, page 22, nothing short of express authority, or authority by implication', will authorize a delegation of the right of eminent domain. In the case of the Pennsylvania Railroad v. Canal Commissioners, 21 Pennsylvania State, page 22, Black, C. J., in delivering the opinion of the Court, says, inter alia: £It may be that the privilege which the relators claim might arise by implication out of their charter or some other of the acts cited by their counsel, if we were at liberty to give to them the broad construction which we sometimes apply to other laws of a different character. But corporate powers can never be created by implication or extended by construction. No privilege is granted unless it is expressed in plain and unequivocal words, testifying the intention of the Legislature in a manner too plain to be misunderstood. When a State means to clothe a corporate body with a portion of her own sovereignty, and to disarm herself to that extent of the powers which belong to her, it is so easy to say so that we will never believe it to be meant where it is not said. And words of equivocal import are so easily inserted by mistake or fraud, that every consideration of justice and policy requires that they should be treated as nugatory when they do find their ways into the enactments of the Legislature. In the construction of a statute, to be in doubt is to be resolved, and every resolution which springs from doubt is against the corporation. This is the rule sustained by all the courts in this country and in England ; no other has ever received the sanction of any authority to which, we owe much deference. The privileges of the Pennsylvania railroad may be too rigidly restricted. If the usefulness of the company would be increased by extending them, let the Legislature see to it, but let it be remembered that nothing but plain English words will do it.’
    “If this strict rule of construction is applicable to the powers of corporations under their charters, certainly a broader one cannot be held in the delegation by a corporation of its corporate rights and franchises in the absence of clear legislative authority. If it be true that a corporation authorized ‘to run, use, and operate,’ and ‘ to enter into leases in respect to the use, management, and working,’ cannot lease its franchises to complete the road, as decided in 32 P. F. Smith, page 113, how can improvements and betterments bearing nearly the same relation to an old road tha t a partly constructed one does to a finished one, at least in this case, which contemplates changing the number of tracks from two to four, and changing the width of the road-bed from sixty-six feet to over one hundred? That the absence of this power would undoubtedly operate as a hardship in many cases cannot be denied, and might even prevent the lessee of a railroad from discharging its duties to the public ; as such a construction might prevent a leased road from adopting the constantly increasing new and useful inventions applicable to railroads, e. g., in the matter of signals, switches, etc., and from accommodating itself to increasing traffic, and in many ways cripple its usefulness ; bu t this would seem to be within the exclusive province of the Legislature to remedy. If it be true, as contended by defendant company, that, under the acts of Assembly above referred to, a lessee has the power to exercise the right of eminent doiriain, then any corporation, no matter what the purposes of its creation are, provided it be authorized to contract with the other corporations, could fake an assignment of such lease, and then exercise the high prerogative right of eminent domain. Had the Legislature intended that so extraordinary a power should be so handed about, they would certainly have said so in language too plain to be misunderstood. For the reasons above given, therefore, the master is of the opinion that the right to exercise the power of eminent domain does not pass to the lessee in the absence of clear statutory provision expressly authorizing it, and that the defendant company have no right to exercise this power as assignees of the lease above mentioned. The master, however, is of the opinion that the defendant company, under its own charter of incorporation, have the right to exercise the power of eminent domain, and that this right is clearly given it under tlió rule of construction as laid down by Judge Black, above referred to.
    “Under section first of ‘An act to incorporate the Pennsylvania Company,’ approved the 7th day of April, 1870, it is provided, inter alia, that the said company ‘may purchase, receive, hold, and enjoy to them, their successors and assigns, all such lands, tenements, leasehold estates, and hereditaments, goods and chattels, securities and estates, real, personal, and mixed, of what kind and quality soever as may be necessary to erect depots, engine-houses, tracks, shops, and other purposes of the said corporation, as hereinafter defined by tire second section of this act '* * * * * * and generally may do all and singular the matters and things which to them shall appertain to do for the well-being of the said corporation and the management and ordering of ■the affairs and business of the same.’
    “ Section second of said charter provides that the corporation hereby created shall have power to contract with any person or persons, firms, corporations, or any other party, however formed, existing, or that may hereafter exist, in any way that said parties, or any of them, shall have authority to do, to build, construct, maintain, or manage any work or works, public or private, which may tend or be designed to improve, increase, facilitate, or develop trade, travel, or the conveyance and transportation of freight, live stock, passengers, and any other travel by land or water, from or to any part of the United States or the territories thereof. And the said company shall also have the power and authority to supply or furnish all needful material, labor, implements, instruments, and fixtures of any and every kind whatsoever, on such terms and conditions as may be agreed upon between the parties respectively, and also to purchase, erect, construct, maintain, or conduct, in its own name and for its own benefit, or otherwise, any such works, public or private, as they may by law be authorized to do, (including also herein lines for telegraphic communication,) and to aid, cooperate, and unite with any other company, person, or firm in so doing.’
    “ Section third of said charter provides, inter alia, that said company shall have power ‘to assume, become responsible for, execute, and carry out any contracts, leases, or sub-leases made by any company, to or with any other company or companies, individuals or firms whatsoever.’
    “ Section fourth of said charter provides, inter alia: ‘ The said company hereby created shall also have power to enter upon and occupy the lands of individuals or of companies (on making payment therefor or giving security according to law) for the purpose of erecting, constructing, maintaining, or managing any public work, such as is provided for in the second section of this act, and to construct and erect such works thereon, and also buildings, improvements, structures, roads, or fixtures as may be necessary or convenient for the purpose of said company under the power herein granted, and to purchase, make, use, and maintain any works or improvements connected with the works of the said company, and to merge, or consolidate, or unite with the said company the improvements, property, and franchise of any other company or companies upoji such terms, &c.’
    “ The purpose of this improvement being mainly to provide facilities for the increasing traffic of the Pittsburgh, Fort Wayne and Chicago Railway Company now operated by the defendant company, and this being one of the purposes mentioned in the second section of the charter of incorporation of the defendant company above recited and for which purpose the company is expressly authorized, under the fourth section of its charter, ‘to enter upon and occupy the lands of individuals or of companies, (on making payment therefor or giving security according to law)’ and the company having made provision for the payment of the land' appropriated by giving bond with sureties, which bond has been approved by your Honorable Court, the master is of the opinion that the defendant company, in making this appropriation, is acting strictly within the powers delegated to it by its charter.”
    The master found that the plaintiff had no standing to question the exercise of this power, under the'following authorities:
    “The authority to determine in any case whether it is' needful to exercise this power must rest with the State itself. Parties interested have no right to be heard on the question unless the State Constitution expressly provides for it. Where the case is such that it is proper to delegate to individuals or to corporations the power to appropriate property, it is also competent to delegate the authority to take.” See Cooley’s Constitutional Limitations, 2 Ed., pages 537 and 538, and authorities there cited; also, Kramer v. Cleveland and Pittsburgh Raih’oad Company, 5 Ohio N. S., 146.
    “ It is solely a legislative function, and the legislative discretion is in this respect of that plenary character that not only it cannot be revised by the judiciary, but a citizen whose property is taken is not entitled to have notice and be heard as to the expediency of the appropriation.” See Pierce on Railroads, page 146, and cases cited.
    Plaintiff thereupon filed exceptions to the master’s report, which were afterwards dismissed by the court, and a decree entered that the bill of complainant be dismissed with costs.
    Plaintiff then appealed and assigned as error the decree dismissing the bill and the dismissal of the exceptions to the master’s report.

      P. C. Knox and S. A. Johnston for appellant.
    The right of eminent domain cannot be delegated or assigned. It cannot, therefore, when conferred on a railroad corporation, be exercised without special statute provision by a lessee of a railroad or by a person employed to build it: Pierce on Railroads, 145 ; Worcester v. R. R. Co., 109 Mass., 103; St. Peter v. Denison, 58 N. Y., 416. See act 1st May, 1861; act 17th May, 1870; act 18th May, 1871. No corporate power exists by implication, unless indispensable to an exercise of its franchises : Penna. R. R. Co. v. Canal Commissioners, 21 Penna., 22.
    Under the act incorporating the Pennsylvania Company, the power to take land is limited to the subjects mentioned in the second section of the act, which seem to include those calling for original corporate action, such as building, constructing, maintaining, or managing1 works, &c. The act, therefore, does not give the appellee the power sought to be exercised in this case.

      Hamspton & Dalzell for appellees.
    By act of 17th March, 1869, P. L., 12, there was added to the franchises of the Pittsburgh, Port Wayne and Chicago Railroad Co., power “ to straighten, widen, deepen, enlarge, and otherwise improve its line of railroad and bridges, &c., and to make new feeders.”
    By virtue of act of 29th March, 1859, P. L., 290, said company had power to lease, and the Pennsylvania Railroad Co. had power to become lessee: Act 23d April, 1861, P. L., 410. One of the rights, privileges, and franchises thus leased to appellee was that of widening, straightening, and improving the road. The right of eminent domain passes by the lease because the power to transfer corporate property is inherent at common law ; because every corporate franchise is the subject of sale and transfer except only that of being a corporation ; because the authority to lease, without passing such power, is inconsistent with the idea that a railroad is a public highway ; and because, when the Legislature authorized the leasing it, by necessary implication, conferred on the lessee all the necessary powers of lessor for the maintenance, use, and occupation of the leased property : Penna. R. R. Co. v. Sly, 15 P. F. Sm., 209.
    Aside from this question, however, the Pennsylvania company has the power under its own charter for two reasons: First, because it is a railroad company, and therefore within the purview of the act of 17th March, 1869 ; second, because its charter expressly confers such power.
    The State may even confer the power of eminent domain on an individual: Pierce on Railroads, 144, 146; Ash ». Cummings, 50 N. EL, 591.
    January 5, 1885,
   the opinion of the Court was delivered by

Paxson, J.:

It was admitted on the argument at bar that the appellees could take the appellant’s land in the name of the Pittsburgh, E’ort Wayne and Chicago Railroad Company. In other words, that the latter company is clothed with the power of eminent domain, and that, if this particular taking had been, in the name of that company, there would have been no room for criticism. That the said company has the right of eminent domain, is not a disputed point in the case, nor could it well be. In view of this, it is difficult to see what great injury the appellant has sustained to justify him in invoking the extraordinary powers of a court of equity. Injunctions will not be granted to redress imaginary grievances. It is only where there is a great and irreparable injury being done or threatened that a chancellor will restrain.

We need not discuss the question whether the right of eminent domain, which the Pittsburgh, Fort Wayne and Chicago Railway Company admittedly possesses, passed by its charter to the Pennsylvania Railroad Company* and to its assignees, the Pennsylvania Company, for the reason that the right of eminent domain is in terms conferred upon the latter company by its charter. Under the first section of an act entitled “An act to incorporate the Pennsylvania Company,” approved April 7, 1870, P. L., 1025, it is provided, inter alia, that said company “may purchase, receive, hold, and enjoy to them, their successors and assigns, all such lands, tenements, leasehold estates, and hereditaments, goods and chattels soever as may be necessary to erect depots, enginediouses, tracks, shops, and other purposes of the said corporation, as hereinafter defined by the second section of this act * * * and generally may do all and singular the matters and things which to them shall appertain to do for the well-being of the said corporation and the management and ordering of the affairs and business of the' same.” And by the fourth section of the same act it is further provided that “ the said company, hereby created, shall also Have power to enter and occupy the lands of individuals or of companies (on making payment therefor or giving security according to law) for the purpose of erecting, constructing, maintaining, or managing any public work, such as is provided for in the second section of this act, and to construct and erect such works thereon as also buildings, improvements, structures, roads, or fixtures, as may be necessary or convenient for the purpose of said company under the power herein granted, and to purchase, make, use, and maintain any works or improvements connected with the works of the said company, and to merge or consolidate or unite with the said company the improvements, property, and franchise of any other company or companies upon such terms,” &c., &c.

In view of this clear grant of power by the Legislature, any further discussion of the case is unnecessary.

The decree is affirmed and the appeal dismissed at the costs of the appellant.


source: Caselaw Access Project

author: Trunkey, J.:

license: Public Domain

text:
    October and November Term, 1884,
    No. 8.
    October 27, 1884.
    Appeal of David Hutchinson et. al.

    The act of 12 February, 1869, section 66, P. L., 150, provides that at no time shall the indebtedness of any sub-school-district of the city of Pittsburgh, for borrowed money, exceed $50,000. Held, that there is nothing in Article IX, section 8, of the Constitution, nor in the a«t of 20 April, 1874, P. L., 65, relating to the increase of indebtedness of municipalities, to authorize a sub-district in the independent school-district of Pittsburgh to borrow money in excess of that limit.

      Before Mercttr, C. J., Gordon, Pa ns on, Trunkey, Sterrett, Green, and Clark, JJ.

      Certiorari to Common Pleas, No. 1, of Allegheny County.

    Appeal of David Hutchinson, W. J. Flinn, J. P. Mc-Gaxvey, and J. B. Larkin, from the decree refusing a preliminary injuction.
    Bill in equity, by David Hutchinson et al. against the Board of School-Directors of the Forbes Sub-School-District of the city of Pittsburgh, setting forth :

      First. That they are residents of the said Forbes suuschool-district of the city of Pittsburgh, and own taxable property within said sub-school-district.

      Second. That said Board of School-Directors of the Forbes Sub-School-District of the city of Pittsburgh, claiming to act in pursnance of an alleged authority given them by law, on the 10th day of July, A. D. 1882, filed in the office of the Court of Quarter Sessions of Allegheny county, a paper, by which they proposed to create' a bonded indebtedness for said sub-school-district, amounting to the sum of $68,000, and claimed that they were authorized so to do by an act of the General Assembly, approved the 20th day of April, A. D. 1874, entitled “An act. to regulate the manner of increasing the indebtedness of municipalities, to provide for the redemption of the same, and to impose penalties for the illegal increase thereof.”

      Third. The said defendants, claiming to act by virtue of the authority alleged to be given them by said act of the General Assembly, are about to issue bonds, to be secured upon the credit of said Forbes sub-school-district, amounting to the sum of $68,000, to be dated June 1, 1882, and payable thirty years after date, with interest at five per cent., payable semi-annually.

      Fourth. That your orators are informed by their counsel, and believe, that by the act of the General Assembly, approved the 12th day of February, A. D. 1869, entitled “An act consolidating the wards of the city of Pittsburgh for educational purposes,” the city of Pittsburgh became a single school-district of itself, and the various sub-school-districts became merely sub-divisions or branches of it; that the first section of said act of the General Assembly, approved the 20th day of April, A. D. 1874, and also section 8 of article IX of the Constitution of this Commonwealth, fix a limitation to the indebtedness which may lawfully be incurred by any county, city, borough, township, school-district, or other municipality or incorporated district within this Commonwealth, which limitation has long since been reached and passed, and is now exceeded, by said city of Pittsburgh, and the second section of the said act of April 20, 1874, does not authorize or permit a sub-school-district, or branch or sub-division of a school-district, to create a new indebtedness while the limit of lawful indebtedness is exceeded by the school-district of which it is a sub-division or branch.

      Fifth. That even if said act of the General Assembly of April 20, A. D. 1874, did authorize or permit the board of school-directors of a sub-school-district to incur an indebtedness while the legal and constitutional limitation of indebtedness has been passed by the school-district of which it formed a part, your orators are-informed by their counsel, and believe, that the said defendants have no power under said act of April 20, A. D. 1874, to incur said indebtedness, because, by the second section of an act of the General Assembly, approved the 22d day of March, A. D. 1877, entitled “An act in relation to cities of the second class, providing for the levy, collection, and disbursement of taxes, and water-rents,” it is provided that in lieu of all existing authority in relation thereto, the finance committee of councils of cities of the second class (which includes said city of Pittsburgh) shall make estimates yearly of the sums of money necessary for conducting the various departments (including schools or boards of education or poor-boards) of the city government, and shall cause a tax, sufficient for all purposes, to be levied and collected annually, and by the sixteenth section of said act, all acts, or parts of acts, conflicting therewith are repealed, thus i’epealing the parts herein-before mentioned of said act of May 20, 1874, in as far as they applied to cities of the second class.

      Sixth. That your orators are informed by their counsel, and believe, that the act of the General Assembly, approved the 24th day of May, 1881, entitled “An act defining the powers of directors of sub-district schools of cities of the second class, to provide for the purchasing of lots of ground, erection of school-buildings, and other expenses of maintaining schools in their respective districts, and to borrow money for such purposes,” has no force or effect to revive or extend the provisions of any part of said act of May 20, 1874, because the requirements of the sixth section of article III of the Constitution of this Commonwealth were not observed in its passage.

      Seventh. Your orators are informed by their counsel, and believe, that even if said act of May 20, 1874, is in force as far as it is applicable to the borrowing of money by school-districts, and the fact that the limit of indebtedness fixed by section 8 of article IX of the Constitution of this Commonwealth, and by the first section of said act of the General Assembly, has been passed by the city of Pittsburgh, does not prohibit the said Forbes subsohool-district from creating an indebtedness; the said Forbes school-district has no power to borrow any sum in excess of $50,000, nor to borrow any sum without obtaining an order of one of the Courts of Common Pleas of Allegheny county authorizing it to do so, because said act of May 20, 1874, is merely a restraining statute, intending to restrain all municipalities from incurring an indebtedness beyond a certain limit or' without observing certain formalities, and does not repeal the sixty-sixth section of the act of the General Assembly, approved February 12, 1869, entitled “An act consolidating the wards of the city of Pittsburgh for educational purposes,” which fixes a special limitation of $50,000 to - the indebtedness of any sub-school-district of the city of Pittsburgh ; nor does it repeal the first section of the act of the General Assembly, approved the 21st day of April, A. D. 1871, entitled “An act to empower the Courts of Common Pleas of this Commonwealth to authorize school-directors to borrow money,” which provides that school-districts shall not issue bonds until an order of the court of common pleas shall have been obtained authorizing them to do so, after public notice by advertisement of the same.

      Eighth. That great and irreparable injury will be done to your orators, and the rest of the tax-payers of said sub-school-district, if the said defendants are permitted to create said indebtedness.
    The bill prayed the Court:

      First. To grant a preliminary injunction upon said defendants to restrain them from issuing said bonds until the matter in dispute in this bill can be determined by the Court.

      Second. Upon final hearing and determination of the matters in dispute in this bill, to grant an injunction restraining the said defendants permanently from issuing said bonds or collecting said tax; and further relief.

      The Court, after hearing, on October 6, 1883, refused to grant the preliminary injunction.
    Plaintiffs then appealed, and assigned as error the action of the Court in refusing the preliminary injunction prayed for, and in holding that a sub-school-district can create an indebtedness in excess of the constitutional limitation.

      Christopher Magee, II. A. Davis, and John Barton for appellants.
    The act of 12 February, 1869, P. L., 150, made the city of Pittsburgh an independent school-district. Act 22 March, 1877, P. L., 16, and act 12 June, 1878, P. L., 182, make this school-district a part .of the city government. Article IX, section 8, of the Constitution, and act 20 April, 1874, P. L., 65, limit the lawful indebtedness of cities to ten, and other municipal corporations and school-districts to seven, per cent, of the assessed value of the property. Therefore, a department, or branch or sub-division of a department, of the city government cannot borrow money when the city has already reached the constitutional limit of indebtedness.
    Section sixteen of act of 1869 gives the central board the power to borrow money and issue bonds, provided that said board shall not be indebted for borrowed money, at any time, to a greater amount than $50,000, and section sixty-six provides that a sub-district may, for the purpose of erecting school-buildings, borrow money, not exceeding $50,000. In act 20 April, 1874, P. L., 65, section 2, the words “school-district” clearly limit it to a whole district — to the incorporated district having general charge of the department of public education. The Legislature meant the whole city, and not a single ward or fraction of the same.

      Slagle & Wiley for appellees.
    The acts of Assembly clearly leave in the sub-school-districts the power to purchase and hold the land, to erect buildings, and to borrow money for those purposes, and none of these powers are impaired by the act of 1877: Com. ». Shaw, 96 Penn., 268; Emerson v. Blairsville, 2 Pitts., 39; Act 24 May, 1881, P. L., 29; Act of 1869, sec. 63; Act of April 20, 1874, P. L., 65.
    It is evident that the act of 1877 was not intended to apply to sub-districts; and if intended to apply to sub-districts it is unconstitutional, because they are not covered by the title: Dorsey’s Appeal, 72 Penn., 192; Aliegheny County Home Appeal, 77 Penn., 77; Com. v. Allegheny Co., 37 Penn., 290.
    The sub-district is not a school-district within the meaning of the Constitution, article IX, section 8.
    The acts of 1869, section sixty-six, limiting the sum to $50,000, and 21 April, 1871, P. L., 241, are superseded by the Constitution and supplied by the act of 20 April, 1874, which expressly provided that any school-district may borrow money in the mode, and subject to the restriction, therein specified.
    November 10, 1884,
   the opinion of the Court was delivlivered by

Trunkey, J.:

The interlocutory decree was made on the 6 th of October, 1883, and since nothing has been done to obtain a final decree. In accord with usage, no opinion will be filed at this stage in the case. The act of 12th February, 1869, entitled “An act consolidating the wards of the city of Pittsburgh for educational purposes,” section sixty-six, provides that at no time shall the indebtedness of any sub-district, for borrowed money, exceed $50,000. A case might arise where the limitations of the Constitution, article IX, section 8, and of th.e act of April 20, 1874, relating to increase of indebtedness by municipalities,' would prevent a sub-district from borrowing money to the extent of $50,000, but nothing in the Constitution, or said act of 1874, authorizes a sub-district in the independent school-district of Pittsburgh to borrow money in excess of that limit.

Decree reversed, and it is now considered and decreed, that pending and during the proceeding in this case, the respondents be and are enjoined from issuing the bonds described in the bill, or similar bonds, in excess of $50,-000, and from the issuing of said bonds to such an extent that the indebtedness of said sub-district for borrowed money shall exceed said sum of $50,000.

The amount of the bond to be filed by the complainants before the issue of the writ, and the approval of said bond, shall be determined by the court of common pleas, or a judge thereof.

Record remitted for further proceedings.


author: Per Curiam :

text:
    October and November Term, 1884,
    No. 176.
    Nov. 6, 1884.
    Jutte v. Conley.
    1. Making absolute a rule to show cause why an attachment under the act of March 17, 1869, should not be dissolved is not a final judgment.
    2. A writ of error taken on such a judgment is premature and will be quashed.
    Before Mercur, C. J. ; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny County.

    Attachment by W. C. Jutte against M. Conley and J. Conley, copartners, trading as M. & J. Conley.
    The following facts appeared from the records of the Court below :
    On July 25, 1884, W. C. Jutte filed an affidavit in which he averred that the defendants were justly indebted to plaintiff for $814 67, and had assigned and disposed of a large amount of their property with the intent to defraud their creditors. On this an attachment was issued under the act Of March 17, 1869. On August 2, 1884, the defendants filed an answer denying that they were disposing of their property with intent to defraud their creditors. On the same day, a rule was granted to show cause why the attachment should not be dissolved, and on August 9, 1884, the rule was made absolute. The plaintiff thereupon took this writ, assigning for error this action of the Court. *

      T. H. Baird Patter son, for defendants in error,
    on October 27, 1884, moved to quash the writ of error.
    Where, as to the attachment of property and the dissolving of such attachment, the act of March 17, 1869, creates a new jurisdiction in common pleas court below, not according to the course of the common law, a writ of error does not lie: Ruhlman v. Com., 5 Binn, p. 24; Commissioners’ Appeal, 57 Penn St., 452
    The dissolving of the attachment, where there is no quashing of the writ, is not, under the act of March 17, 1869, such an order as puts an end to the plaintiff’s case, a result equivalent to a final judgment, but is a conclusion of the discretion vested by the act in the common pleas court below, which is not the subject of a writ of error: Sharpless v. Ziegler, 11 Norris, 470 ; Overseers of Laporte v. Overseers of Hillsgrove, 14 Id., 269 ; In Kensington Turnpike Co., 1 Outerbridge, 269 ; Lycoming Fire Insurance Co. 'o. Storrs, Id., 359.

      Isaac 8. Van VoorTiis for plaintiff in error.
    The cases cited in support of the motion to quash are quarter sessions cases, and of course certiorari is the only remedy in error.
    No case under act of 1869 has come under our notice, wherein the precise question at bar was in issue, but Sharpless r>. Ziegler, 11 Norris, 470, and Biddle v. Black, 12 W. N. C., 218, were writs of error and entertained by this Court, and the same question was in these cases.
    An order setting aside an execution attachment was reversed in Lorenz v. Orlady, 87 Penn. S. C., 226, and Pontius ». Nesbit, 4 Wright, 309. It was held to be reviewable. A motion to quash was made in the latter case.
    Why should not the summary dissolving of the plaintiff’s attachment stand on the same footing? No evidence was taken in the court below, and the record shows a summary order. No„ court will decide on the merits without depositions, and it would be error so to do: Gregg’s Appeal, 30 Pittsgh. L. J., 59.
    November 13th, 1884.
   Per Curiam :

This is not a final judgment. The'attachment only is dissolved. There is a personal service of the writ. The suit is still pending. This writ of error is premature.

Writ of error quashed.


author: Sterrett, J.

text:
    October and November Term, 1882,
    No. 92.
    Oct. 30, 1884.
    Marlatt v. Marlatt.
    1. The action for use and occupation is grounded on a contract relation, the essential characteristics of which are recognition by the occupant of the owner’s title, and possession in subordination thereto, with his express or implied consent.
    2. Where, therefore, the defendant, a devisee, went into possession, and the plaintiff tenant by the courtesy testified ttiat he asked for possession and was refused, and that he never asked for rent, and that there was no agreement to pay rent, and there was no other evidence, it was'error to refuse to charge the jury that the verdict should be for the defendant.
    Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Error to the Common Pleas, No. 1, of the County of Allegheny.

    Case by James Marlatt, for use of A. M. Watson against Henry Marlatt.
    The declaration was for use and occupation of a certain dwelling-house and lot in Chartiers township, formerly the property of Margaret Marlatt, deceased, in which the plaintiff alleged a husband’s courtesy.
    ' On the trial, before Collier, J., the following facts appeared : Margaret Marlatt, wife of plaintiff, and mother of defendant, died in September, 1876, seized of the property for use and occupation of which this suit was brought, having first made a will duly recorded and proved June 8, 1878, in which she devised these premises to the defendant, who remained in possession from the time of her death, during the period of plaintiff’s claim. The plaintiff testified that he had asked the defendant to give him possession of the property, and that he had not done so ; the same witness was cross-examined as follows :

      “Q. When did you first ask Henry for rent, if you ever did?

      A. I did not ask him for rent, because he would not give me any that I know of.

      Q. Did you ever ask him at all for any rent ?

      A. No ; I guess I did not.

      Q. Did he ever agree to pay you any rent ?

      A. No; I made no arrangement with him. All I wanted was to board there somewhere, everything was run out, or played out on me, down getting my debts or claims below.”
    This wa's all the’evidence for the plaintiff.
    The defendant presented, inter alia, the following point:
    “That under all the evidence, their verdict should be for the defendant.” Refused.
    Verdict for plaintiff for $312 62 and judgment thereon, whereupon defendant obtained this writ, assigning for error, inter alia, the refusal of his point quoted above.

      Thomas Herriott for plaintiff in error.

      The action for nse and occupation will not lie unless there is a contract, either expressed or implied, between the parties. Wood’s Landlord and Tenant, p. 948 ; Taylor on Landlord and Tenant, 636 ; Pott v. Lesher, 1 Yeates, 576 ; Klinev. Jacobs, 68Pa. St., 57; Brolasky v. Ferguson, 48 Pa. St., 434; Stockton’s Appeal, 64 Pa. St., 58.
    From, the testimony of the plaintiff, it is clear that the defendant'never, in anyway, recognized the plaintiff’s right to possession.

      A. M. Watson for defendant in error.
    The action for use and occupation will lie upon proof of title in plaintiff, and occupation by defendant; Clark ' v. Green, 35 Ga., 92.
    November 13, 1884,
   the opinion of the Court was delivered by

Sterrett, J.

In this action for use and occupation, it was incumbent on plaintiff below to prove that the relation of landlord and tenant existed between him and defendant; that the latter occupied the premises in question with the assent, express or implied, of the former, and in subordination to his title as tenant by the courtesy, not claiming in his own right or adversely to the plaintiff. The action is grounded on a contract relation, the essential characteristics of which are recognition by the occupant of the owner’s title, and possession in subordination thereto, with his express or implied assent. As was said in Brolasky v. Ferguson, 12 Wright, 434, the proof of such relation may be either direct or presumptive. If the occupant of the premises has been in possession by permission of the owner, the law will presume a promise to pay a reasonable rent, though none has been expressly agreed upon. In such case, the contract is deduced from the assent of the owner, and the acts of the occupant in pursuance thereof ; but, when the occupant enters without any understanding with the owner, and without ids knowledge, there can be no basis for any implication of a contract to pay for the use of the premises. Tested by these principles, plaintiff below had no case, and defendant’s fifth point, in which the court was requested to instruct the jury, “That under all the evidence their verdict should be for defendant,” should have been affirmed. In his examination-in-chief, plaintiff testified in substance that defendant took possession of the house and lot on the death of his mother, in 1878, and has lived there ever since; that at one time he demanded possession of the premises, but defendant refused to surrender the same. On cross-examination, lie was asked: “When did you first ask Henry for rent, if you ever did?” His answer was, “I did not ask him for rent, because lie would not give me any that I know of.” And to the question, ‘ ‘ Hid lie ever agree to pay you any rent ?’ ’ lie replied, “No; I made no arrangement with Mm. All I wanted was to board there somewhere.” In the face of this testimony, and plaintiff had nothing better on which to rely, it was clearly impossible for the jury to find that any s.uch relation as that of landlord and tenant existed between the parties. On the contrary, the only inference that could be legitimately drawn by the jury from the evidence was, that on the death of his mother, defendant, as her devisee of the premises in question took, and retained possession thereof, in his own right, and not in subordination to the title of Ms father or any one else. In other words, plaintiff below failed to make out such a case as warranted a verdict in his favor. It is unnecessary to consider the specifications of error in detail.

Judgment reversed.


text:
    October and November Term, 1884,
    No. 14.
    October 27, 1884.
    McAfee v. Magee.
    1. In. an action of ejectment to determine whether a certain frame house was included within the terms of the following devise: “I give and devise to my wife Sarah the house in which I reside, corner of High street and an alley, with the lot whereon it stands and appurtenant to it,” the court left it to the jury upon the evidence to determine how the testator regarded it in his life-time, whether he regarded it as one house, and instructed them that if he so regarded it their verdict should be for the devisee. Held that this was not error.
    2. The Court further instructed the jury that in order to determine ho wit was regarded by the testator, they were not only to take the evidence of how he acted in regard to it before he made the will, but that they might take any acts of his down to the time of his death. Held not to be error.
    Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, Greek, and Clark, J J.
    Error to the Court of Common Pleas, No. 1, of Allegheny County.

    Ejectment by Sarak Magee against Patrick McAfee to recover a lot of ground with a house erected thereon, situated in the city of Pittsburgh.

      The following facts appeared at the trial, October 19, 1883, before Collier, J.:
    Both plaintiff and defendant claimed title through the will of John Magee.
    John Magee died on June 27, 1881, leaving a will, which contained, inter alia, the following clauses :
    “ I give and devise to my wife Sarah the house in which 1 reside, corner of High street and an alley, with the lot whereon it stands and appurtenant to it.”
    “I also devise and bequeath to my wife Sarah all pay household furniture and goods and chattels in my present dwelling house.”
    The residue of his estate was given to his executors in trust for the support of his wife and son. The will was dated May 8, 1877. On June 22, 1881, he made a codicil, in which he directed his executors to invest the sum of $500,. and pay it with the accumulated interest to a niece when she should reach her majority.
    The lot claimed by the plaintiff was described as follows :
    “Beginning at a distance twenty-three feet and six inches from the corner of High street and Denny’s alley, and running thence eastwardly along said alley sixteen feet and five inches to a line of property owned by Andrew Hayden ; thence running back, preserving the same width sixteen feet and five inches, twenty-two feet and two inches to other property, late of the decedent, and having thereon erected a three story frame dwelling house.”
    The premises in dispute were a frame house, and lot, fronting on Denny’s alley, which leads into High street, bought by the testator in 1848. For a number of years afterwards he lived in this house. In 1854 he built a brick house adjoining at the corner of High street and Denny’s alley, fronting on High street.
    The evidence disclosed the following facts: At first there was no internal communication between the two buildings. In 1863 or 1864, to accommodate John O’Neill, a tenant, a door was made betwreen the store room of the brick house and the first story of the frame house. O’Neill was for a time tenant of the first story in each house, using the premises for a saloon. After O’Neill left, the first story in each house was sometimes occupied by one tenant, and at other times the rooms were rented separately. The upper stories of the frame house were also rented to tenants. Magee himself never occupied the store room. He lived with his family in the upper part of the brick house. This was the situation when he made his will May 8, 1877. In June or July, 1880, he made a door between the two houses on the second floor, and occupied the back room in the frame building as a kitchen. This continued tilbhis death. . The assessors1 books produced at the trial showed that in 1S79 and 1880 the houses had been assessed separately.
    The defendant offered, inter alia, the following points :

      Sixth. The words of the testator, “ corner of High street and an alley,” fix and indicate the location of the house devised to plaintiff, and the words “in which I reside,” do not increase or diminish the extent of the bequest. The words, the “ house in which I reside,” will not control the more specific designation used in the will to describe the house devised to plaintiff, and embodied in the words, “corner of High street and an alley,” and the latter words must prevail.

      Seventh. If at the date of the will the frame house was separate from the brick house at the corner High street and the alley, except the door between the store room on the first floor of the brick house and room on the first floor of the frame, and John Magee occupied no part of the frame house as a residence, the frame house does not pass to the plaintiff.

      Eighth. If the frame house was, at the date of the will, separate from the brick house, except the door connecting the rooms on the first floor of each, that would not make them one house, and tjie frame house would not be covered by the words at the “ corner of High street and an alley.”

      Ninth. The devise to Sarah Magee, not being a general devise, but the devise of a particular thing, to wit, the residence of the testator at the corner of High street and an alley, so far as the devise to Sarah Magee is concerned, the will must be regarded as speaking from its date, and will carry the property as it existed at that time, and not otherwise; and this is not altered by the codicil, subsequently made by the testator.
    The Court answered the defendant’s and plaintiff’s points together as follows :
    So far as the foregoing points are answered affirmatively in the general charge, they are affirmed, and so far as they are answered negatively, they are refused.
    (Second, third, fourth, and fifth assignments of error.)
    The Court charged the jury, inter alia, as follows :
    “This is an action of ejectment, the plaintiff alleging that the title to the property in question is in her, and that it is not the property of the trustee, Mr. McAfee, the defendant.
    “ It is the law of ejectment that the person in possession, no matter how weak his title, can not be turned out unless the plaintiff shows a better title. In this case, no matter how Mr. McAfee got possession, whether forcibly or otherwise, he cannot be turned out unless you find the plaintiff has a better title than his.
    “The plaintiff claims title through her husband’s will, and the language of it, under winch she claims, is this :
    ‘I give and devise to my wife, Sarah, the house in which I reside, corner of High street and the alley, with the lot whereon it stands and appurtenant to it.’
    “That by itself would give her the house on the corner of High street, with lot on which it stands and which is appurtenant to it.
    "‘I also devise and bequeath to my wife, Sarah, all my household furniture, and goods and chattels in my present dwelling house.’
    “ In another clause the testator provides that the trustee shall make the widow an allowance to keep her, and if there is more than will keep her reasonably, in his judgment, decently — that means according to her station in life — the balance shall go to the improvement of his estate.
    “The question for you to determine is, what was the house on the corner of High street and the alley ? Did it include the frame building, or, as sometimes called, the back building, on the alley %

    ‘ ‘ If that was included in the ‘ house on the corner of High street and the alley,’ the plaintiff takes it; if it is not included, she does not take it.
    “ The evidence does not seem to show how much the lot was, whether it included this house, or where it ran to ; you are left a little in the dark about it. Whether it was one house is not made clear by the will, but it is perfectly clear that the house she gets must be on that corner, the corner of High street and that alley.
    “You will determine whether the two buildings constitute one dwelling from all the facts given in evidence, and circumstances surrounding, the manner of occupation, and how the testator regarded it in his life-time, whether he regarded it as one house, because, if he did, you are able to find that there is sufficient evidence to satisfy your minds that that really was the case, the plaintiff would be entitled to a verdict although part of it was brick and “part frame.

      [“To determine how it was regarded by Mr. Magee, you. are not only to take the evidence of how he acted in regard to it before he made the will, but you may also take any acts of his after he made it, down to the time of his death.]
    “ The plaintiff contends, that before the will was made, they lived in the old frame, that Mr. Magee’s living child was born there. I believe it does not appear (however, you will remember that) that he was living there at the time the brick building was erected. He did build this brick building ; the old one above the first floor, at any rate, was frame.
    ‘ ‘ Before he made the will, in renting the lower part of his house he cut a door through between the two buildings ; that a year or so before he' died, he cut a door above in the second floor, and took the room adjoining the brick building and turned it into a kitchen. Subsequently he made a codicil to his will, and died.
    “Prom these facts, and others, (I do not pretend to give all of them,) the plaintiff asks you to say that it was clearly in the mind of old John Magee that this was one house, that he so regarded it; in other words, that the frame was nothing but a back building.
    ‘ ‘ On the part of the defendant, there is pretty strong evidence the other way. It is alleged that the old man did not live in the frame when he built the brick; that he built a separate building; that he rented the old building out, before and after he made the door, to different people as a separate building ; that he had a way outside to get to the first story and above ; that it was assessed as two separate buildings, and he paid taxes on them as such ; that at the time he made the will, he lived in the brick building exclusively.
    “ If you find, gentlemen, that the acts of the old gentleman, and the circumstances surrounding, show the frame building was one and part of the brick — it was all one building on the corner of High street and the alley — the' plaintiff can recover.
    “ On the other hand, if you find they were separate buildings, you find for the defendant.”
    October 22, 1888, verdict for the plaintiff, upon yvhich judgment was afterward entered. The defendant thereupon took this writ, assigning for errors, inter alia, the answers to his points as above, and the portion of the charge included within brackets.

      A. M. Brown and John S. LamMe for plaintiff in error.
    ‘ A. devise of the house in which I now live, ’ ’ means where he resides at? date of the will: 1 Jarman, 334 and 335 ; Williams ». Owen, 2 New Reports, 585; Hutchinson». Barrow, 6 H. and Norman, 583; Cole v. Scott, 1 McN. and G., 518 ; Webb v. Byng, 1 Kay and Johnson, 580 ; Quinn ». Hardenbrook, 54 N. Y., 83; Emuss v. Smith, 2 De Grex and S., 722 ; 1 Redfield on Wills, 380.
    It is not necessary that the word “now ” be used, any word in the present tense will have the same effect: 1 Jarman, 320; Wagstaff ». Wagstaff, 8 Law Reports, (Equity.) 229.
    Whenever a testator refers to an actually existing state of things, the language is referential to the date of the will and not to his death.
    The words “in which I reside” do not either increase or diminish the extent of the bequest. The devise is not the house in which I reside, but a particular house. It is as though he had made the bequest in these words: “ I devise the house at the corner of High street and the alley, where I reside.” He might have changed his residence many times after making the will, but the bequest remained unchanged. The intent of the testator can be further learned from the other provisions of his will. He gives to his wife all his furniture, goods, and chattels “in my (his) present dwelling house.” Manifestly, the word “present” can only refer to the date of the will. He then creates a residuary estate for the support of his wife and son. His purpose seemed to be to give his wife a furnished home, and then provide for her support. We, therefore, conclude that the Court erred in refusing to charge as requested in the sixth, seventh, eighth, and ninth points of the defendant.

      Breil & Fitzpatrick for defendant in error.
    November 10th, 1884.
   Per Curiam :

This contention arises under a clause in a will in which the testator devised to his wife “the house in which I reside, corner of High street and an alley, with the lot whereon it stands and appurtenant to it.” The evidence as to location of the lot described, and the testator’s residence was fairly submitted to the jury. They found from the acts of the testator and the surrounding circumstances, that the two buildings were treated and recognized by him as one. It follows they constituted the property which the testator devised to his wife.

Judgment affirmed.


author: Per Curiam:

text:
    October and November Term, 1884,
    No. 197.
    Nov. 5, 1884.
    McGrew et al. v. McGregor et al.

    1. In a suit for margins paid and advanced by plaintiffs to protect oil represented by certificates where there was no intention to deliver the oil, and no agreement that the defendants should ever pay the whole amount and take the certificates, the plaintiff cannot recover.

      2. The case falls within that class of gambling transactions which the courts will not lend their aid to enforce.
    Before Mercur, C. J.; Gordon, Paxson, Trunkey, Green, Clark, JJ.; Sterrett, J., absent.
    Error to Common Pleas, No. 1, of Allegheny County.

      Assumpsit by B. G. McGrew and A. B. McGrew, trading as B. G. McGrew & Co., against William McGregor and James W. Dudgeon.
    Upon the trial in the court below, before Stowe, P, > J., the testimony was as follows :
    B. G. McGrew, one of the plaintiffs, testified, inter alia :

    I am a broker in the oil exchange. W illiam McGregor, the defendant, employed me through my son. I purchased oil on the 10th of November, 1882. I purchased ten thousand barrels at $1 40.
    A. B. McGrew, for the plaintiff, testified in substance, inter alia:

    I was an oil broker in November, 1882, and was clerking for my father. On the 10th of November, 1882, I received instructions from the defendant to purchase oil. He told me to see what I could buy one thousand barrels for, and I reported $1 40 was the lowest it could be had at, and he told me to buy one at the best I could. I went and told father to buy it, and he bought at $1 40, and I reported to the defendant. He bought ten thousand barrels at that time. — one thousand for the defendant. I think on the same day we purchased one thousand barrels for him at $1 25. On the 17th of November, we purchased for him one thousand at $1 20 a barrel. On the 23d of November, one thousand at$l 16, and on the 13th of November, one at $1,27£. After December 17, 1882, there was one thousand barrels at $1 16£. The total amount was five thousand barrels. We sold for them one at $1 28J on the 13th of November, and on the 24th of November four thousand at 97 cents. The total loss was $1,177, of which they paid us $400. The understanding, at the time this oil was purchased, was he paid us $100 on the first thousand barrels, at $1 40, and when the market declined, he was to give us more money. We were to “ carry it ” for him. When we buy the oil we pay for it in full, and he pays ten per cent, down — ten per cent, margin on it, and sometimes fifteen or twenty per cent.; but this amount paid us was ten per cent., $100 on one thousand barrels, and we borrow the balance from the bank, and give the certificate for security. This oil was put in bank to borrow money on. We used it as collateral. The total amount due from the defendant is $777. It was not on their order we sold the oil. We called on them for more money, and they would not pay it, and we were forced to sell it. When the market was falling, we agreed to carry the oil for them awhile, and they agreed to pay us the money for it if it depreciated. The custom when the market is falling is, we always ask for margins. Sometimes they give it to us, and sometimes asked us, as a favor, to carry the oil for a day or two, and they would give us the money. We made such an arrangement with these defendants. This oil was delivered to us on the oil exchange, nn Wood street, in the form of United Pipe Line certificates. They called for one thousand barrels each. We had five of them. Having possession of the certificate you could get the oil at any time you demanded it.
    Cross-examined:
    There was no arrangement that the defendants were to pay us the balance of the money, and we were to deliver the certificates to them. We very seldom delivered certificates to any customer. If we delivered the oil to them, it would cost $1,400 for the first thousand barrels, and they wanted us to take care of the oil.
    By the Court:
    It Avas not the intention that the oil was to be received and paid for. We were just to carry it for them. We had the oil ready any time they would call. We could give to them certificates. We could have delivered to them these certificates, having 4hem in bank. We could have delivered any time they had the money ready, or to any one they might order to receive them We received an actual certificate signed by the United Pipe Line. That gives us a right to go and demand the oil. It is just like a bill of lading.

      Re-cross-examined:
    One certificate is the same as another. They never received any certificates. That was not our habit. That was not our intention at all. We were to take care of the oil for them. If they wanted the oil we could give it to them at any time — the certificate — and they could get the oil from the United Pipe Line. We never had any arrangement ; they could pay the whole amount, and take the certificate.
    B. G. McGrew recalled:
    The balance was sold after I asked them to put up more money to keep it good. They refused to do so, and I couldn’t carry it any longer. Then I sold it out after the market had declined, until their margin was used up, or until the price of oil would about make the account even. They asked me to carry it longer for them on my own money, and they would make it good. They asked me to do that. They talked to me myself. What I am seeking now is to recover money I advanced to cover margins for them — money I advanced for them to hold their oil at their request, and on their promise to make it good to me.
    The Court entered a judgment of non-suit, and on motion refused to take it off.
    Plaintiffs then took out a writ of error, and assigned as error the entry of, and refusal to take off, the compulsory non-suit.
    id id Sneathen for plaintiffs in error.
    The petroleum was actually purchased and delivered to the plaintiffs for defendants, in the only manner known to trade, to wit: By certificates of United Pipe Lines. While these certificates were in bank as collateral, the defendants were the actual owners of the petroleum. That this was not a wager is evident from the subsequent agreement between the parties: Pareira ®. Gabell, 89 Penna., 90.
    Had the market advanced, the defendants only would have been the gainers ; the plaintiffs would only receive their commissions. Therefore, the contract could not have been a wager: North ®. Phillips, 89 Penna., 253; Smith®. Bouvier, 70 Penna., 325; Wynkoop®. Seal, 64 Penna., 361; Esser ®. Linderman, 71 Penna., 76; Max-ton ®. Gheen, 75 Id., 166. Different questions were edjudicated in Bruas Appeal, 55 Penna., 294; Pareira ®. Gábell, 89 Id., 892; Ruchizky®. DeHaven, 97 Id., 202; Dickson’s Executors ®. Thomas, Id., 278.

      S. A. Johnson for defendants in error.
    This case conld not have been brought more completely within the numerous decisions on the question of wagering contracts. If oil certificates were purchased, they were purchased without the remotest intention of passing them to defendants. -
    Rucliizky v. DeHaven, 97 Penna., 202. This case also decides that when a person enters into stock-gambling transactions, through the medium of a broker, he will be deemed to be dealing with the broker as principal, and not as agent. Hence, there was no delivery to defendants. The money advanced by the broker, on such contracts, cannot be recovered: Dickson’s Executors v. Thomas, 97 Penna., 278.
    November 13th, 1884.
   Per Curiam:

The evidence of the plaintiffs shows very clearly that there was no intention to deliver the oil. It was a sale on margins. There was no agreement that the defendants should ever pay the whole amount and take the certificates. This suit was to recover margins paid and advanced by plaintiffs to protect the oil represented by the certificates. The case clearly falls within that class of gambling transactions which the courts will not lend their aid to enforce. Fareira v. Gabell, 8 Norris, 89; North v. Phillips, Id., 250; Dickson’s Executors v. Thomas, 1 Out., 278. The decision and judgment of the court were clearly right.

Judgment affirmed


text:
    October and November Term, 1884,
    No. 37.
    October 29, 1884.
    Mundorff et al. v. The Board of School Directors of Kilbuck Township.
    By agreement, not under seal, a board of school-directors contracted with O for the erection of a school-house for the sum of $5,970, to be paid to O on the completion of the building within the time specified, and, if not so completed, O to forfeit ten dollars per day for each day it remained uncompleted. The agreement further provided that “ the said school-board agrees to pay all bills for material and labor when so ordered by said O, but twenty-five per cent, of all bills to be kept back until completion of the building.” ,
    O bought lumber upon the faith of the agreement, which he showed at the time of the purchase.

      Held in a suit by the vendors against the board that there was no privity of contract between them, and that the Court was clearly right in ordering a compulsory non-suit.

      Before Mercur, C. J.; Gordon, Paxson, Teunkey, Sterrett, Green, and Clark, JJ.
    ■Error to the Common Pleas, No. 2, of Allegheny County.

    Case by G. A. Mnndorff and A. S. Mnndorff, trading as G. A. & A. S. Mundorff, against The Board of School-Directors of Kilbuck Township, to recover $372. 67 for window-frames and finishing-lumber, claimed to have been furnished the defendants for use in building a school-house under their control and management.
    On the trial the plaintiffs showed the following facts :
    The plaintiffs were engaged in the manufacture of window-frames and other house-furnishing lumber in the city of Pittsburgh.
    On May 27th. 1881, the defendants made a written contract, not under seal, with A. G. Oakley, for the building of a school-house, according to certain plans and specifications, the house to be finished in four months from the date of the contract, or a forfeiture of ten dollars per day to be paid for each day it remaineduncompleted afterwards. In consideration whereof the school-board agreed to pay Oakley, upon the completion of the building within the time specified, the sum of $.5,970, in full payment thereof. The agreement also provided, as follows : ‘ ‘ The said school-board agrees to pay all bills for material and labor, when so ordered by said A. G. Oakley, but twenty-five per cent, of all. bills to be kept back until completion of the building.”
    In September, Oakley came to the plaintiffs at their place of business, and showed them his contract with the school-board, and said: “To show you it is all right, I have an article of agreement that states that the school-board will pay for all lumber and material as it comes on the ground by me O K-ing the bill, and I am directed to come here and purchase it, or to purchase the lumber. He didn’t say to come to our place to purchase it, but was directed to purchase it.” The plaintiffs testified that they agreed to furnish the materials ordered, and delivered the same “ upon the strength of the school-board, and upon that writing and no other,” “knowing Oakley was not responsible for a dollar.” Oakley testified 'that “ the school-board was to pay all bills on my order. I was to O K the bills, and the school-board was to pay them; that was what I told him (Mr. Mundorff) at the time.” The plaintiffs delivered, at the school-house, material to the amount of $819 67. Two bills, one for $277 and one for $319, were made out — “A. Gr. Oakley, bought of Mundorff,” — were given to Oakley, marked O K by him, and, on presentation to the school-board, seventy-five per cent, of each bill was paid to plaintiffs by the treasurer’s checks, one dated October 15,1881, for $205 75, and on November 8, 1881, for $239 25. The plaintiffs continued the delivery of material until November 16, 1881, when the balance remaining unpaid (including $149, twenty-five per cent, of the first two bills retained by the board under the contract with Oakley,) amounted to $372 67. Oakley gave an order to the plaintiffs, December 2, 1881, which they presented to the treasurer of the board. It was refused. In February, 1882, the schoolhouse being still uncompleted, the board declared the contract with Oakley at an end, and had the building finished by other parties. At this time it was shown that about $192 worth of plaintiffs’ material was upon the ground at the school-house, and this was used under the direction of the board in finishing it.
    Defendants moved the Court to grant a compulsory non-suit against plaintiffs, for the following reasons:

      First. That, under all the evidence Offered, no privity of contract has been shown between plaintiffs and defendants, and plaintiffs cannot recover.

      Second. That plaintiffs, having offered the agreement between defendants and the contractor Oakley, as the basis of their right to recover, they are bound thereby, and have no legal claim thereunder against the defendants.

      Third. That the defendants have a right and ownership in all material delivered to the new house under their agreement with Oakley ; the plaintiffs have no claim therefor under the law against defendants.
    The Court entered judgment of compulsory not-suit, which, on motion and argument, it refused to. take off; whereupon, plaintiffs took this writ, assigning for error the action of the Court in entering the judgment of compulsory non-suit, and in refusing to take it off.

      D. B. Maxwell and J. S. Ferguson for plaintiffs in error
    The insertion in the contract of the covenant by the defendants that they would pay for all material was not, in anyway, necessary for the protection of the school-board. It was certainly put in the contract for a purpose. In view of the law preventing the filing of mechanics’ liens, and the fact of Oakley’s insolvency, the purpose becomes manifest. It was to give Oakley a credit which he otherwise could not have had. With us it served its purpose, and the school-board, having armed Oakley with its written declaration that it would pay us, we now ask that it shall be compelled to do so. Its actions were consistent with this purpose. Our first bill amounted to $277. Oakley certified the bill to be correct, and the school-board paid, not Oakley, but Mundorffs, by drawing its check or warrant to their order. So with the second bill. The unpaid portion of the bill, therefore, was furnished by Mundorfif upon the faith of the declaration of the contract, and a course of dealing in exact accordance with that declaration.
    But, if we cannot recover the whole of our bill, why should we not recover $192 of it ? That much of the material was at the building unused when the school-board took the contract off Oakley’s hands. It was not paid for, as the school-board well knew. Under the evidence, it was not sold to Oakley. He, therefore, took no title to it. If he sold it to the school-board, he sold what did not belong to him, and the school-board, knowing, at least, that it was not paid for, took it and used it. The title remained in us.

      Henry A. Davis and D. D. Bruce for defendants m error.
    The plaintiffs had notice, by the written contract, that any lumber furnished by them must be furnished to Oakley ; that the school-board could not assume to pay any bills to them unless “when so ordered by said A. Gf. Oakley ; ” that they could then only pay seventy-fi.ve.per cent, of the amount of the bill, and that the remaining twenty-five per cent, was contingent on the completion of the building by Oakley.
    Oakley, under his contract, was to furnish all labor and material. He was not bound to O K any bills, and any lumber furnished by him on his contract to the schoolhouse belonged either to him or the school-board, and there is no privity between the board and any third party furnishing either labor or materials except that created by the contract, where they are to pay seventy-five per cent, when ordei’ed to do so, and the balance on the completion of the house ; and any lumber which might have been on the ground unused by Oakley at the time he threw up the job, belonged to Oakiey, had been sold and delivered to him, and he alone couid claim the value of it, or claim credit for it in any settlement lie made with the school-board about abandoning the contract.
    November 10th, 1884.
   Per Curiam:

There was no privity of contract between these parties. The school-directors contracted with Oakley only. The whole sum for which he was to build the school-house was to be paid to him, with the single qualification that, when ordered by him, they would pay all bills for material and labor. He did not order them to pay these bills in contention. The Court- was clearly right in ordering a compulsory non-suit and in refusing to take it off.

Judgment affirmed.


text:
    October and November Term, 1884,
    No. 79.
    October 30, 1884.
    Muse v. Douglass et al.

    Where in an issue devisavit vel non evidence has been given of great imbecility of mind, and of improper influence in making the testamentary devise, the helpless and dependent condition of children and grandchildren who were strongly discriminated against may be shown as bearing on the question of imbecility or restrained volition.
    Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Error to Court of Common Pleas, No. 2, of Allegheny County.

    Issue devisavit vel non, between John Muse and Margaret Douglass and James Edward Myers, by his next-friend, Margaret Douglass, to determine the validity of the will of Robert Douglass, deceased.
    At the trial, March 4, 1884, before Kirkpatrick, J., it appeared that Robert Douglass made a will, on January 19, 1878, wherein he bequeathed his personal estate to his wife, together with a life interest in one third of his realty; to his daughter, Margaret, $800, and to his grandson, James Edward Myers, $200, and the residue of his estate to his sister, Maria Weddell. He directed his executor to sell the real estate, leaving one third of the proceeds as an incumbrance upon it to secure the life interest of his wife, and the residue, after payment of the legacies to his daughter and grandson, to be paid to Mrs. Weddell. The testimony showed that Douglass was a man of weak intellect; that he had been several times confined in an asylum, and that at one time he had had a committee appointed to take charge of his estate. It also appeared that insanity was hereditary in his family.

      John O. Rankin was called by the defendant, and asked:
    Do you know the condition his (testator’s) daughter and grandson were in, financially \

    Objected to by plaintiff as incompetent and irrelevant.
    The Count: Testimony received; objection overruled. Exception.
    (First assignment of error.)

      Q. Do you know what her (the daughter’s) physical capacity was to work for herself \

    Objected to as incompetent and irrelevant.
    The Court admitted the testimony under exception.
    (Second assignment of error.)
    The defendant offered, inter alia, the following point :
    , “Fourth. If the jury find from the evidence that Maria Weddell, who inherits, under the alleged will, the bulk of the estate of -Robert Douglass, .is already well-to-do, and not needing such bounty, and that the defendants, Robert Douglass’ daughter and his orphan grandson, are almost penniless and in need, they may take these facts into consideration in passing upon the questions of want of testamentary capacity and undue influence.”

      A. “Affirmed.”
    (Sixth assignment of error.)
    Yerdict for the defendants, and judgment thereon.
    The plaintiff thereupon took this writ, assigning for error, inter alia, the action of the Court in receiving the testimony as above and affirming the defendants’ points.

      A. M. Brown and M. P. Douglass for plaintiff in error.
    The first, second, and sixth specifications of error prove that testimony was admitted to show that Margaret Douglass and James E. Myers were very poor; that Margaret was not physically strong, and much more of the same sort. This, we submit, was not simply erroneous, but strongly tended to produce the result reached by the-trial — a verdict giving the property to these impecunious people, mainly because of their poverty.
    If the validity of wills is to be determined by such facts, few of them would be upheld. The most impecunious of the next of kin are sometimes the most undeserving of bounty; and a testator, having testamentary capacity, has the right to nominate the objects of his bounty, althougn his judgment may not be approved by his neighbors. Under the rulings in the present case, the verdict could not be otherwise than in favor of the penniless contestants, and. against the presumably rich legatee.

      John Dalzell and J. W. Baillie for defendants in error.
    The first, second, and sixth assignments of error relate to the same subject. The Court below admitted evidence tending to show the miserable condition, pecuniary and physical, of Robert Douglass’ only living daughter, to whom, under the alleged will, was left a pittance of $300, and charged the jury that if, under the evidence, they found that Maria Weddell, to whom was left the bulk of the estate, was well-to-do and not in need of such bounty, they might take these facts into consideration in passing upon the questions of the validity of the will.
    The evidence was admissible and the charge was rignt.
    ‘ ‘ The fact that a man’s will is unaccountably contrary to the common sense of the country is not sufficient, ipso facto, to set it aside. But certainly that which outrages common feeling, and displays a want of natural affection, is a fact to be considered, along with other evidence, in the question of unsoundness or delusion of mind.” Bitner v. Bitner, 65 Penn. St., 362; Pidcock v. Potter, 68 Penn. St., 352.
    November 10th, 1884.
   Per Curiam:

The evidence of unsound mind of the testator, for many years, was so clear and strong that it increased the probability of improper influence having been exercised over.him. While a person of sound mind may disinherit those who are most nearly related to him by blood, and who would inherit from him in case he died intestate, yet after some evidence is given of great imbecility of mind, and of improper influence in making the testamentary devise, the helpless and dependent condition of such near relatives who were strongly discriminated against may be shown as bearing on the question of imbecility or restrained volition. Wholly unexplained, it is a fact proper to consider as indicating the absence of a reasonable natural affection implanted in the human mind. The assignments are not sustained.

Judgment affirmed.