text:
    Shurtz v. Thomas.
    General words in a deed by trustees, descriptive of the interest conveyed, will be confined by the prior recitals. Hence, where a widow administratrix executes a deed pursuant to and reciting a contract by her deceased husband, and the decree of the court upon it ordering her to convey, which purports to convey all the estate of the husband and of her the said M. (M. being the administratrix), since his decease, and signs and seals it without adding a description of her office ; her dower does not pass.
    Yendee agreeing to apply part of the purchase-money in satisfaction of all judgments and liens against the vendor, by becoming the purchaser at sheriff’s sale under one of those judgments after the vendor’s death, does not divest the widow’s dower, for he was bound to extinguish the debt for which the land was sdld.
    Accepting a conveyance by administrators, pursuant to a decree for perfecting the decedent’s contract, is a waiver of the right to a title clear of the encumbrance of the widow’s dower.

      In error from the Common Pleas of Centre county.
    Case stated in an action of dower. In July, 1833, James Smith, the husband of the demandant, being seised of the land now in question, subject to his mother’s right of dower, entered into articles for the sale of the land to Eranklin B. Smith, for $10,500. The purchaser agreed to pay all judgments and liens on the estate, then amounting to about $5,000, and to save the vendor, his heirs, executors, &c., harmless, from them. $3,000 of the purchase-money was to be retained, secured by mortgage, by the purchaser during the life of the vendor’s mother, and at her death paid to him, and the residue was to be paid on the execution of the deed on the 1st of April following. The purchaser further covenanted, that if the liens existing against the estate were not satisfied by the 1st of April, he would give the vendor satisfactory security against them.
    James Smith died before the 1st of April, leaving his widow, the demandant, who, together with one Dale, administered to his estate. Franklin B. Smith assigned his right under the articles to Thomas, subject to the payment of the purchase-money as stipulated to be paid by the articles, who procured it to be proved in the Common Pleas, pursuant to the act of 1792.
    Upon this, Mary Smith and Dale, the administrators of James Smith, presented a petition to the Court of Common Pleas, praying leave to execute a deed to Thomas, according to the contract. The court decreed accordingly, and the administrators executed a deed for the land to Thomas. This deed recited the seisin of Smith, the contract, the petition and decree, and conveyed the land “ and also all the estate, right, title, interest, &c., of the said James Smith, in his lifetime, and of them the said Mary and Dale, since his decease, in law or equity,” and was sealed by the grantors, and signed without the addition of their official character.
    Among the judgments against James Smith, which bound his estate, was one in favour of Franklin B. Smith, and another which had been assigned before the contract of sale was made. After the death of James Smith, his administrators were substituted as defendants to a sci. fa. to revive, and judgment taken against them. This judgment was again assigned to one Valentine, after the execution of the deed by the administrators of Smith. The land included in the deed was then levied on and sold, and conveyed by the sheriff to Thomas, the grantee in the administrator’s deed. The administratrix having moved to set aside the writ before the sale, Thomas filed in the court a sealed instrument, declaring it was not his intention, in procuring the sale, to defeat any of the covenants contained in the contract, and bound himself to carry all his own covenants into effect. Thomas paid the purchase-money, $2,000, to the sheriff, and had also executed a mortgage to secure the dower of James Smith’s mother, pursuant to the articles. It further appeared that on the final administration account there wa3 a balance of $34 due to the estate.
    Whether, under these circumstances, Mary, the widow of James Smith, was entitled to dower, was the question.

      The court (Woodward, P. J.) .gave judgment for the defendant.

      J. T. Sale, for plaintiff in error.

      Curtin, McAllister and Burnside, contra.
   Gibson, C. J.

At the death of James Smith, his widow was entitled to dower in his estate. He had covenanted to convey it to his brother Franklin B. Smith, and pursuant to leave given by the Common Pleas, the plaintiff, his widow and administratrix, and Cornelius Dale his administrator, conveyed it to the defendant William A. Thomas, who had in the mean time acquired the equitable interest of the vendee. The deed purported to convey all the estate which the vendor had in his lifetime, and all the estate “ of them the said Mary and Cornelius since his deathand this latter clause, it has been insisted here, as it was in the court below, where, however, the cause was decided on another point, carried the plaintiff’s dower, consummated by her husband’s death. The statute of 1792, which authorized the proceeding, enacts that such a deed shall have the same effect to pass the estate as if it had been executed by the decedent in his lifetime; and Riddlesberger v. Mentzer assigns to it the same effect in regard to the widow’s dower: so that the defendant is driven to the necessity of claiming a greater one, in this instance, from the clause I have particularly indicated. Had the dower been specifically described in it as .a distinct estate and separate subject of the grant, an intention to convey it would have been too clearly disclosed to be resisted; but the administrators were directed by the decree to deal, not with their OAvn property, but with the legal title of the vendor; and though a conveyance explicitly including an interest of their own would have passed it, yet the words in a conveyance like the present, are to be restrained, where they will bear it, to the business of the occasion, and no intendment is to be carried beyond it. The administrators met the defendant to execute a contract, not of their own, but of their intestate; and before their particular interests are to be involved in their conveyance, it must appear by special description that they were intended to be involved. No one can believe that the plaintiff meant to throw in her dower; and it would require strong terms to bear out an intention so opposite to her interest. By no construction but a strained one, could the clause in question be made to embrace any but joint interests of the administrators; and as it does not appear that they had any, it seems to have been inserted under a vague impression that the case was within the statutes which turn the devise of a power to sell into a devise of the legal title. It was well said by Mr. Justice Spencer, in Jackson v. Stevens, 16 Johns. 114, that general words of a releasor or grantor are to be restrained to the occasion; and that though they are to be taken most strongly against the releasor or grantor when they stand alone, yet that when they are preceded by an explanatory recital, they are to be interpreted in subordination to the general purpose; and the principle is sustained by all the decisions from Lord Arlington v. Merricke, 2 Saund. 414, down to Barker v. Parker, 1 T. Rep. 287, and perhaps by others still later. The deed before us recites the articles of sale, the death of the vendor, the probate of the contract, the prayer for leave to make a conveyance, and the decree; and it was in reference to the object to be accomplished by these, that the general words in the clause were predicated: they pass no more than the legal title which it was the office of the proceeding to convey.

The defendant claims title also paramount to the plaintiff’s dower, as a purchaser under a judgment against her husband which bound his land, and consequently her initiate right of dower in it. But did he purchase in good faith? Both he and Franklin B. Smith, to whose equitable title under the articles he succeeded, had covenanted to apply a competent part of the purchase-money to payment of the judgments by which the estate was encumbered; of which, the judgment under which the defendant purchased, having procured it to he pressed to a sale, was one. To escape from the imputation of bad faith, he insists that he was not bound to pay them before he had received a clear title, and that he was therefore compelled to buy from the sheriff to protect his previous purchase. But he had himself agreed to clear the title with means retained by him for the purpose; and it is idle to say that he was placed in a dilemma, or that he could not pay before he had got a title, and that he could not get it before he had paid. The widow stands on the estate of the vendor from which her freehold is derived ; and against his action for the residue of the purchase-money, had he lived to institute one, such a defence would have been treated as a mockery; and were the defendant before a court of equity as a suppliant for an injunction against her action of dower, founded on the same basis, he would be treated with very little ceremony. Even where there is not a covenant to apply the purchase-money, the existence of encumbrances is a defence to an action for it no further than retention of it is necessary to discharge them, and the reason for it, is that the title is safe while enough is in the hands of the vendee to make it so. After securing the dower of Mrs. Simpson, which enters no further into the present question, enough was left in the hands of the defendant to pay off all the liens; and it was his business to apply it.

It is further insisted that the widow, having been a party to the revival of the judgment on which the land was sold, was personally bound by it, and is estopped, by the principle of Share v. Anderson, from claiming her dower in disaffirmance of it. Whether she was a party to it or not, it bound her dower, which would have been extinguished by a sale of the land to any one who was not bound to pay it. But a purchaser under a judgment which he ought to have paid, is in the predicament of a purchaser who knows that it was actually paid. It is paid as to him; and he shall not deny it.

Again, it is said that the contract looked to a conveyance free from, not the previous dower of Mrs. Simpson, the vendor’s mother, but the dower of the plaintiff, his wife; and that, as the defendant was not bound, by the articles, to advance a dollar before he had been secured on that head, he was not bound to remove an encumbrance by an application of the purchase-money. But he thought proper to accept of a conveyance, which did not touch the plaintiff’s dower, as satisfaction of the articles, and as an equivalent for the unencumbered fee simple. They contained a covenant for an unexceptionable title; and the defendant, standing in the place of the vendee, was not bound to take anything less from the administrators than he would have been bound to take from the vendor' himself; but Clark v. Seirer shows that he might, by taking less, preclude himself from demanding anything further. Had he insisted on his extreme right, equity would not have enforced it.against the plaintiff, either as a wife or a widow, but would have left him to his action at law, for a breach of the covenant. But he was content to abandon a part of the contract, in consideration of having the rest specifically executed, and ■ to accept from the administrators no more than the vendor would have been compelled by a chancellor to give him; to accomplish which, he took the initiative. He was entitled to demand an unencumbered fee simple; but, waiving his right, he might take less; and he did waive it, when he took a conveyance from the administrators, which had the same effect that a conveyance from the vendor would have had without the joinder of his wife. But the delivery of a deed in execution of articles to convey, is almost always held to be satisfaction of the covenants; and the acceptanee of the administrator’s conveyance of the vendor’s title, encumbered with his widow’s dower, is as much satisfaction of the articles, in this instance, as would have been the vendor’s separate conveyance, which alone he could have been compelled to make. Undoubtedly there are sometimes covenants which are not thus satisfied; but they are for things collateral to the conveyance, such as to convey one tract of land, and to procure a third person, to convoy another, as in Brown v. Moorhead, 8 S. & R. 569 ; or such as have been founded on fraud or misapprehension, as in Crotzer v. Russell, 9 S. & R. 78; and Anderson v. Long, 10 S. & R. 55. In this instance, the covenant for title was not collateral, nor was the acceptance of the deed founded in fraud or misapprehension ; and the defendant took by it, not an unexceptionable title, but one which he consented, to take in satisfaction, and as an equivalent for it.

There was, therefore, no impediment to performance of the defendant’s covenant; and why was he not bound in equity to perform it for the benefit of the plaintiff? This question raises the only apparent difficulty in the' case. It is not to be disputed that Franklin B. Smith, whose place he assumed in the proceeding to procure the title, would have been bound to perform it at the instance of the administrators who succeeded to the rights of the vendor, and who would have been entitled to insist on an application of the purchase-money, to protect the assets in their hands. Equity would not have suffered him to retain it, for the purpose of regaining, by a sale on one of them, what he had consented to abandon by accepting a conveyance from which it was excluded. It would have compelled him to pay off the liens, or it would have assigned the plaintiff’s dower, in disregard of any title he might have acquired under them. Now, though it is not to'be denied that there was originally no privity between the defendant and the plaintiff, who was a stranger to his covenant with Franklin B. Smith; yet, when he had taken the place of the latter, proved the contract, and procured the administrators to execute a conveyance to him on the faith of that covenant, an immediate privity sprung up between the parties, on the basis of mutual obligation. On no condition but that he would perform the contract which his predecessor had undertaken to perform, would the administrators have' consented to part with the security for the purchase-money which retention of the title would have afforded; and they were not bound to part with it, without having received performance of his stipulations. They were entitled to have the judgments paid simultaneously with the' execution of the deed, or they were entitled to have the purchase-money, that they might pay them with their own hands, as a legitimate destination of the fund; and equity would have had it applied in some way, or have rescinded the contract. The plaintiff would not have joined in the conveyance, except to have the judgments paid in ease of her dower; and to purchase an estate paramount to it on one of them, which he was bound in conscience to pay, was a legal fraud, which postponed the title he acquired by it. In these circumstances, a chancellor would assign her dower in disregard of it. The only thing that suggests a doubt of it is the fact, that scarce a dollar was left when the creditors were satisfied; and their interest in the land, as a chattel for payment of debts, was paramount to that of the widow. But who can say that enough would not have been left for both, had the defendant suffered the contract to rest rescinded, so far as regarded specific performance of it, as it was at the death of the vendor, and permitted the land to be sold for an outside price ? Without tendering a conveyance of it clear of her dower, the administrators could not have compelled Franklin B. Smith, or the defendant, who was bound to him for the performance of his covenants, to execute the purchase specifically, or even to respond in damages for a breach of the contract; and he, on the other hand, could not have compelled the administrators to convey more than he could have compelled the vendor to convey; he could have done no more than recover damages by an action to his use, in the name of Franklin B. Smith. But rather than restore the land, and take his chance of that, he thought fit to retain it, under a conveyance of title, which left her dower on it; from which we must infer, that he thought it worth the purchase-money and the value of the dower together, or at least that he thought it preferable, even thus burthened when paid for, to what he might gain by a lawsuit; for he was bound to know, as the law of the contract, that the dower did not pass with the fee. If he was right in his estimate, he was bound by every tie of conscience to render to her what, by the legal consequences of the arrangement, was her own. If he was wrong, he voluntarily consummated what turned out, by the death of the vendor and his own blunder, to be a hard bargain; and' no chancellor would, merely for that reason, suffer him to cut himself loose from it by buying in the estate on a paramount judgment, which he was bound to the widow to discharge. He would be held to the arrangement, however disastrous to him; and his paramount title would be postponed in equity, however unexceptionable at law.

Judgment reversed, and a venire facias de. novo awarded.

Rogers and Burnside, Js., dissented.


source: Caselaw Access Project

author: Rogers, J.

license: Public Domain

text:
    Railroad Co. v. Yeiser.
    A party is not answerable in damages for tbe reasonable exercise of a right: unless on proof of negligence, unsldlfulness, or malice, in the exercise of that right.
    By the charter of the company, the venire to assess damages to the owner of land occupied by the road, was directed to view the premises and estimate the quality and quantity of the land so occupied, and all other inconveniences which may be likely to result to the owner of the land: Held, that that provision embraced probable damages from fire caused by the neoessary emission of sparks from the engines to be used in doing the business of the company.
    In an action by such land-owner against the company for injury to his woods and fences, caused by sparks from the company’s engines, the record of the venire and the proceedings thereupon, with proof of the payment of the damages thereby assessed to the owner of the land, is evidence; and that whether damages were assessed on the venire for the inconveniences likely to result from sparks, or not.
    If the land-owner had claimed and obtained damages for the occupation by the company of a certain breadth of his land, and then ran his fence inside of that space, evidence of the fact ought to have been received as bearing upon the question of negligence.
    The firing of one’s woods several times by sparks from the engines of the company, is not in itself evidence from which negligence in managing the fires of the engines can be inferred: and it is error so to leave it to the jury.
    In error from the Common Pleas of Berks county.
    This was an action on the case, brought by Jacob Yeiser against the Philadelphia and Reading Railroad Company, to recover damages for the burning of his woods and fences by sparks from the defendants’ engines, the fires of which he alleged were negligently managed. The evidence adduced on each side was substantially the following:—
    Joel Mast: “ I know the property of Yeiser; I live á mile and a half or two miles from there; the railroad cuts through his property. Two years ago last April, I saw a fire there. There was a train went up in the evening after dark; I was across the Schuylkill, and saw the train coming; the engine was nearly half a mile ahead of that fire, and we thought it was the lantern on the hind cars; the train had passed the fire; it was a very dry time, the weather very dry; there was a sort of sharp air, not a high wind, at the time; the fire, when I saw it, was about the size of a lantern. The train was going very fast, and would have taken a very short time to go the half-mile; the sparks flew wonderfully out of the engine; the sparks flew back three or four cars’ length, and towards the side where the fire commenced. When I saw the fire first, it was not further from the track than the length of this courthouse ; I did not go that night and help put it out, I could not get across the river. The fire was about half a mile from Yeiser’s house; it was back of the hill, so that he could not see the fire. I went there next day and helped to deaden the fire; the fire went over five or six acres, as near as I know; the fence was all burned up ; there was a fence before the fire, thirty or forty rods of fence more or less; some trees were burned all black; one or two burned entirely down. There was no fire there that day but this; there was no house near there from which the fire could have been communicated. The same season there was a fire on this land near the railroad ; some rails were burned in two, and some nearly burned up. Cars were going up and down the whole day like, at the time of the fire; they were running late in the evening. There was a week maybe between the two fires.”
    • James Anderson: “ I saw the fire commence in the,«spring of 1845; it began immediately on the railroad, about dark; it was very dry weather, somewhat windy. The passing of cars is so familiar I paid no attention. I don’t know how long before .the cars passed. The cars were passing up and down in the ordinary way of going. The road was doing its usual business. The fire was stationary for a time; then increased, and burned over all the woodland.
    “ Cross-examined. — This woodland was on the bluff of a hill. I can’t see any difference between the land now and before the fire. There is no house near the place, nor fire kept up near it, except locomotives. Persons often walk along the railroad.”
    Jacob Yoder: “I saw a fire on Yeiser’s place near the railroad and put it out, but this was the year before, three years ago. There was a stump lying at the fence that got on fire; I stood by when the locomotive passed, and then this stump took fire. I stood alongside of the railroad, a couple of rods from the stump. I could not see the sparks because it was day-time, but as soon as the locomotive passed the stump took fire.”
    John Mast, recalled: ££We thought that the engine that went up burned wood — we thought so by the sparks. The sparks flew out fiery and very high; they flow in every direction; sometimes they would fly and come pretty near the ground, and then look dead like.
    “ Cross-examined. — Sometimes the sparks in engines fly out more than at others; this one threw out very much. At the second fire I mentioned, the tenders of the engines were filled with wood.”
    Richard Adams: “ I saw a fire on Yeiser’s land by the railroad in the second week of April in the afternoon. I can’t tell what caused the fire; there was none before the engine came up; after the train had passed I saw a small fire below Yeiser’s house. There was no fire-screen or spark-catchers on; I saw no sparks, it was day-time; I went away before the fire was stopped ; saw it burn. It was near the railroad. I suppose it was a stump it set fire to; I have frequently seen small fires on Yeiser’s land which made a little smoke, it did not do any kind of damage. I can’t tell if on these occasions I saw cars pass.
    “ Cross-examined. — I mean, when I say there was no fire-screen on the engine, that there was none visible.”
    Hiram Frey: “ I saw fire on Yeiser’s premises in April or May, 1845, along the line of .the railroad. The first fire I saw took place in the night; in the morning I went out on the hill and helped put it ojit. There was a considerable share of fence burned. The fire ran through the woods over maybe three or four acres. 'At that time, and the day before the fire, the engines were passing up and down the road, also in the night.
    “Another fire took place on Yeiser’s premises two or three weeks afterwards; I don’t know how it originated, didn’t see. It was in the middle of the day. Engines were passing there every hour or hour and a half. There was some fence burned; can’t say how much. It was a very, dry time. The engines were generally driven by wood; I can’t remember more than one driven by coal at the time.
    “ Another fir.e took place on Yeiser’s premises the same day with this last fire. Yeiser got me and another man to measure how much fence was burnt during the three fires; there were about 120 panels. In the three fires seven, eight, or ten acres wore burnt over. In the two fires in the day-time there was a pretty strong wind.
    “ Cross-examined. — It is a steep hill, and pitches on the railroad. In part all the railroad is in the river. The rails in the fences were dry, some of them may be a little rotten. The coal engine that ran that year was the Cherokee; I think she was running at that time.”
    The plaintiff, further to maintain the issue on his part, gave in evidence the act incorporating the said company (pro ut the act), and closed.
    The defendants then, to maintain the issue on their part, offered in evidence the venire and proceedings to assess damages for the construction of the said road over the premises in question, under the act of incorporation, together with the said act of incorporation, and proof of the payment of the damages assessed by the said defendants (record of case No. 14, November Term, 1840); which evidence being objected to by the jffaintiff, was rejected, and the defendants excepted to the decision of the court.
    The defendants then, to show negligence on the part of the said Yeiser, offered the same evidence as that contained in the last bill of exceptions, with proof that the said Yeiser, in the same proceedings, claimed and was allowed and paid damages for the occupation of two hundred feet in breadth of land by the said company, and that running his fence inside of that distance was negligence on the part of the said plaintiff; which evidence, being objected to'by the plaintiff, was rejected, and the defendants excepted to the decision of the court.
    The defendants then called Lewis Kirk, who testified as follows: “lama, machinist by trade, and superintendent of the engines of the said railroad company. Locomotives have been in general use since 1824. They burned wood and coke. In 1833, they were in common use. All the engines of the company, except two at the lower end, are under my control for repairs, construction, &c. I have been superintendent on this line since 1842. All the locomotives that ran in March, April, or May of 1845, burning wood, were provided with spark-catchers. There were three kinds of spark-catchers on the engines; they were the best spark-catchers in use, to my knowledge. I am intimately acquainted with spark-catchers. In running, spark-catchers do not prevent the escape of sparks entirely; when they are feeding the fire in the engine, it throws out more sparks than at other times; one kind of spark-catcher is a bonnet of wire gauze outside the smoke-pipe; another kind is an inverted cone inside the smoke-pipe; a third kind is French & Baird’s patent; the two last could not be seen from the outside ; they are an improvement on the bonnet. Attention was paid to these spark-catchers. No engines were sent upon the line unless they were in good order; at that time they were new and in very good order. In March, and April, 1845, we had one engine running that burned coal — the Shamokin. She had a patent apparatus attached for burning her own smoke sparks; no sparks could escape from her; the sparks were returned into a tight ash-pan, forced back by a fan. I am not aware of any construction of locomotives, by which they could be rendered more safe than these were in April, 1845.
    “ Gross-examined. — In 1844, we burned coal in twelve engines for five or six months. The wood engines that run now, when they are firing up, leave a long train of sparks. These engines all have spark-catchers. We probably .have forty engines of this kind on the line in use. We have only one engine that burns coal now; that one is on the Mount Carbon road. There were some ten or fifteen per cent, of the whole force of the engines on the line, in the shop in 1845. Whenever we found one out of order, we put her in the shop. When they fire up, the door being open, the draft is not so great, the combustion not so perfect, and the small sparks escape.”
    Isaac Brenholtz: “ In 1845, I was under Mr. Kirk in the machine-shop. The engines were all provided with spark-catchers, to the best of my knowledge, except one that was burning coal. A large part of the engines had French & Baird’s patent; others the inverted cone and the bonnet; these are good; the two first very good. The Shamokin ran by coal in 1845; no sparks came out of her. T can’t say when the Cherokee began to run, but it must have been afterwards, I think; I think fire could not come from the Cherokee, from the manner in which she was constructed.
    “ Cross-examined. — The Shamokin was not a good engine while she had that apparatus on; she was used with coal trains; her train was not more than thirty cars. If coal could be burned successfully it would be cheaper than wood. There are no coal engines now.”
    The defendants closed.
    The plaintiff requested the court to instruct the jury—
    That if the jury believed that the fires on the plaintiff’s land which have been proved, were caused by sparks from the locomotive engines of the defendants, while passing over the plaintiff’s premises, this is of itself evidence from which negligence in the management of the fire in the said engines may be inferred.
    The defendants requested the court to instruct the jury as follows:—

      1. The plaintiff cannot recover unless there was negligence on the part of the defendants.
    2. That the burden of proof of negligence lies on the plaintiff.
    3. That if the loss of the plaintiff Ayas occasioned in part by his oAA'n negligence, he cannot recover.
    4. That the jury is not at liberty to conjecture damages. That the plaintiff can only recover such damages as are actually proved.
    5. That the defendants had a right to run locomotive engines on their road in the ordinary Avay, and if the loss of the plaintiff resulted from the ordinary use of the engines, the plaintiff cannot recover.
    6. There is no evidence of negligence on the part of the defendants, and therefore the plaintiff cannot recover.
    The court (Jones, J.) charged the jury as follows:—
    “ This is an action on the case, brought by Jacob Yeiser against the railroad company, for negligently, carelessly, and improvidently keeping, managing, and attending to the fires in the locomotive engines of the said company, Avhereby the fences, trees, and timber of the plaintiff upon his farm, through Avhich the railroad of the defendants passes, were burnt, injured, and destroyed.
    “ There seems to be little doubt in this case about the origin of the several fires, from Avhich the plaintiff’s property sustained injury. It is hardly seriously denied, as Ave understand the defendants’ counsel, though of this you are the judges, that these woods and fences Avere fired by the engines of the company. If you are satisfied that these fires arose from this cause, then the only question is Avhether the company is responsible, if these fires resulted from the ordinary use of the engines, AYithout proof of negligence in the servants of the company.
    “ This question is one of great practical importance along the extended line of the company’s road, and indeed of all the roads in the commonAvealth. The proof of negligence in managing the fires of any particular engine, running as the engines of the company do at all hours of the day and the night, very many trains passing both Avays, and with a speed that would generally defy or baffle observation, avouM always be a matter of extreme difficulty. The fire lodged in a wood or on a house, miglp; not break out into a conflagration for hours after, and twenty engines might have passed shortly before or after the fire was communicated, among which it Avould be absolutely beyond all proof to distinguish the one which caused the injury. It seems unreasonable, therefore, to require of the plaintiff that proof of positive negligence insisted on by the defendants here. Indeed the plaintiff does not attempt to furnish it, but relies on the several fires communicated to his woods and fences, and described in the testimony, as being of itself evidence of negligence, if you believe that these fires were caused by sparks from the defendants’ locomotives, and has so requested us to charge you. In charging you agreeably to that request, we do so not without some hesitation; but if this principle is not admitted, there can scarcely be a recovery against the defendants for a similar injury.
    “ The company, under its charter, has an unquestionable right to run locomotive engines upon its road in the ordinary way; but it does not follow that, if the loss of the plaintiff resulted from the ordinary use of them, he cannot recover. The company has undoubtedly exercised remarkable care in constructing its engines, to render them as little dangerous as possible. Every appliance known to this department of mechanical science, has been resorted to, and the inventive faculties of the most skilful machinists have been taxed by the company to produce an engine that would emit no sparks. Such an engine has been produced; but its excellence, in this particular, seems to have been attained only by the loss of its power. The ‘Shamokin,’ whilst she was perfectly safe to the property along the line, would draw but thirty cars, and so was not a good engine as long as she had on the apparatus that produced that result. If the company was compelled to use such engines as this, it might well happen that it would soon be driven to suspend its vast operations. The law does not force upon the company such a necessity. It says to the company, You may use engines in the ordinary way — such engines as were known when you obtained your charter — such as have been invented at any time since — but you must use them at your own risk .and peril. It is not to be presumed that the legislature intended to absolve this company, by any grant, from its liability to the owners of property for this kind of damage. The people have a right to safety in their houses and lands, which was anterior to any charter, and which it is not to be supposed the legislature intended to impair by any charter.
    “ The single point presented by the plaintiff, and the fifth and sixth presented by the defendants, are answered in the foregoing. The first, second, and fourth points of the defendants, are answered in the affirmative; the third point was prepared in view of certain evidence which has been ruled out, and is therefore not pressed by the defendants.”

      To this charge the defendants excepted. And a verdict and judgment thereupon being rendered for the plaintiff, the defendants sued out their writ of error, and in this court made the following assignment of errors:—
    1. The court erred in excluding the evidence offered as contained in defendant’s first bill of exceptions.
    2. The court erred in rejecting the evidence mentioned in defendant’s second bill of exceptions.
    3. The court erred in answer to plaintiff’s point.
    4. In their answer to defendant’s fifth point.
    5. In their answer to defendant’s sixth point.
    6. In charging the jury that the several fires described in the testimony were of themselves, evidence of negligence.
    7. 'In charging that the law “ says to the company, you may use engines in the ordinary way; such engines as were known when you obtained your charter; such as have been invented at any time since; but you must use them at your own risk and peril.”
    8. There is error in the charge of the court generally.

      FT. B. Strong and W. Strong, for plaintiff in error.
    Charter of company, Act of 4th April, 1832 and 1833, Pamph. Law's, 151. Locomotives, under the charter, to be used on this road. Damages assessed in 1835, for damages to the premises of the plaintiff, and paid to him. No negligence proved here. The court w'ere wrong in instructing the jury that the fires on the plaintiff’s property, if caused by sparks from the locomotives of the defendant, were in themselves proof of negligence. He cited Clark v. Foot, 8 Johns. Rep. 421; Panton v. Holland, 17 Johns. 92; Thurston v. Hancock, 12 Mass. Rep. 220; Runnels v. Bullen, 2 N. H. Rep. 534; Calendar v. Marsh, 1 Pick. 418 ; Green v. Bor. Reading, 9 Watts, 382; Livingston v. Adams, 8 Cow. 175; Vincent v. Steinham, 7 Vermont Rep. 62; Aldridge v. Great Western Railroad Co. 42 Eng. C. L. Rep. 272; Germantown Railroad v. Wilt, 4 Wh. 147. The fire was caused by the plaintiff’s own negligence, inasmuch as he placed his fence on the ground of the company.

      Smith and Banks, contrA
    The track of the railroad, where there are embankments, is about thirty feet in width, and this is the case through part of Yeiser’s property. The record of the assessment of damages in 1835, was offered to show that the company, in that case, paid damages for twm hundred feet. The engines used at the time of the firing in this case, scattered sparks to a distance of thirty or forty yards. The question then is, in this case, Is the company liable for an injury by fire, caused by the sparks emitted by such engines ? The authority of this company to carry passengers or merchandise is nowhere given, except in the proviso of the 2d section of the charter: Act of 4th April, 1832 and 1833, Pamph. Laws, 146 ; 42 Eng. C. L. Rep. 272; 24 Eng. C. L. Rep. 18; King v. Pease, 1 Swift’s Dig. 553 ; Story on Bail, 472; New York v. Bailey, 2 Denio, 433. Negligence' is the absence of ordinary care. If engines are driven so fast that sparks fly out to the length of three or four cars, as was proved in this ease, and without spark-catchers on the smoke-pipe, and without fire-screens, it is negligence. If the company use and carry fire on this road, it must use that degree of care in doing so that a prudent man would use in carrying fire on a road and through the property of another.

      June 26.
   Rogers, J.

Nor is there any reason for sympathy with the plaintiff, as he has already received, or, what is the same thing, might have received compensation for the damage or inconvenience arising to him from the occupation of the road. It is not denied that the company, at the time the accident took place, were in the lawful pursuit of a legitimate business. If, therefore, the plaintiff has been injured, it is damnum absque injuria, and the company are not to be mulcted in damages, unless on proof of negligence on the part of the company or its officers. In Potter v. Holland, already cited, it was contended that the defendant ivas liable, on-the principle sic utere tuo ut alienum non laidas. The plaintiff insisted that without reference to the question of negligence, the defendant was answerable. But the court was of the opinion, and so ruled, that no man was answerable in damages for the reasonable exercise of a right where it is accompanied with a cautious regard to the rights of •others, where there is no just ground for the charge of negligence or unskilfulness, and where the action is not done maliciously. It is said that the proof of negligence in managing the fires of any particular engine, running as the engines of this company do, at all hours of the day and night, very many trains passing both ways, and with a speed that would defy or baffle observation, would always be a matter of extreme difficulty. The fire lodged in a wood, or in a house, might not break out into a conflagration for hours after, and twenty engines may have passed shortly before or after the fire was communicated, among which it would absolutely be beyond all proof to distinguish the one which caused the injury. From all this the learned judge draws the conclusion it would be unreasonable to require proof of negligence. It may be very true that there may be some difficulty in the proof, arising from the circumstances stated, and if so, they ought to be taken into consideration by the jury. But because there is some perplexity in it arising from the manner in which the business of the road is done, that is no reason that every principle of law should be uprooted by requiring no proof of negligence whatever. We see neither reason nor justice in the position. It would undoubtedly lead to great wrong to the company, who would have no means of guarding themselves against the malice or cupidity of the owner or others, who may fire the lands for the very purpose of making the company answerable in damages. If the law be that the existence of fire alone is, all that is-required to fix the liability of the company, it would be difficult if not impossible for them to escape. They would in effect become insurers of every property, 'including the city of Beading itself, contiguous to the road: a grievance which might prove destructive to the interests of the company. It is therefore but just, that they should have the benefit of the principles extended to all others, that no person is answerable in damages for the reasonable exercise of a right accompanied with a cautious regard to the rights of others.

The plaintiff in this suit declares for negligence. Negligence, according to his own showing, is the gist of the action; and yet he has been allowed to recover damages without any proof of negligence, or any attempt even to prove it, and that in the face of overwhelming testimony that there was no negligence nor unskilfulness whatever, but that, on the contrary, extraordinary pains were taken and expense incurred to prevent injury to lands through which the road passes, from the emission of sparks from the engines.

We are also of opinion that the evidence offered in the second bill ought to have been received, as bearing on the question of negligence ; for if the fire was caused by the act of the plaintiff in building on the land appropriated to the company, he is not entitled to damages. In that case he would have himself to blame for the.loss, and not the defendant.

Judgment reversed, and a venire de novo awarded.


author: Gibson, C. J.

text:
    Foust v. Renno.
    A bond, in the body of which the names of the obligors were written, was executed by one of them without a subscribing witness; afterwards the qther executed it in the presence of two witnesses, who subscribed their names to a general attestation, as if they had witnessed the execution of the bond by both: S'eld, that if the attestation was purposely made general to import an attestation of execution by both the obligors, it avoided the bond; but if the witnesses subscribed their names to the attestation as it was prepared, without being practised upon by the obligee, or ignorantly, or innocently, it did not vitiate the bond.
    In error from the Court of Common Pleas of Berks county.
    In the court below, Daniel R. Foust brought an action of debt against David Renno and John Miller, upon the following bond:—
    “Know all men by these presents, that we, David Renno, of Womelsdorf, and John Miller, of Bernville, and both of Pennsylvania, are held and firmly bound unto Daniel R. Foust, of Bern-ville, and state aforesaid, in the sum of $T56.48, lawful money of the United States of America, to be paid to the said Daniel R. Foust, or to- his certain attorney, executors, administrators, or assigns, to which payment well and truly to be made and done, we bind ourselves, jointly and severally, our heirs, executors, and administrators, and every of them, firmly by these presents, sealed with our seals, dated the 1st day of April, 1845.
    “ The condition of this obligation is such, thatif the abové-bounden David Renno and John Miller, their heirs, executors, or administrators, or any of them, shall and do well and truly pay or cause to be paid unto the above-named Daniel R. Foust, or to his certain attorney, executors, administrators, or assigns, the just and full sum of $856.48, together with lawful interest for the same from the above date, in like money as aforesaid, at or upon the 1st day of April next ensuing the date hereof, without fraud or further delay; then the above obligation to be void and of no effect, otherwise to be and remain in full force and virtue.
    David Renno, [d. s.]
    John Miller, [l. s.]
    “Sealed and delivered in the presence of Joseph M. Conrad, Henry Witman.”
    The defendants pleaded non est factum. At the trial, Joseph M. Conrad, one of the subscribing witnesses, testified: That he was a subscribing witness; that he saw Miller execute the bond, but not Renno; that Renno’s name was signed to the bond when Miller signed it, and that he signed as a witness; that Renno told him, a week before the trial, that he had signed the bond, and that he did not deny his name.
    Henry "Witman, the other subscribing witness, testified: That he was a subscribing witness; that he saw Miller execute the bond; that Renno had signed it before he signed it as a witness; that he did not see Renno sign the bond, but that Renno confessed to him at Pottsville, a week or ten days before the trial, that he had signed the bond.
    The plaintiff then called Henry W. Smith, Esq., one of the defendant’s counsel, who testified: That he was acquainted with the handwriting of David Renno, and that he believed the signature of David Renno to the bond to be his handwriting; that he had no doubt of it.
    Jones, P. J., after stating the evidence, charged the jury thus:—

      “ From this evidence it appears, that neither of the subscribing witnesses saw Renno execute this bond; that his name was written to it when they attested it, and that the only execution of the instrument, which they saw, was by Miller. It is beyond doubt, however, that Renno did execute the bond, both from his own admissions to Conrad and Witman, and from the proof of his signature, by Mr. Smith. Subscribing witnesses are not necessary to the validity of a bond; their addition alters the mode of its proof. If there are no witnesses to a bond, the proof is directed at once to the handwriting of the obligor: if there are witnesses, they must be called; and this cannot be dispensed with where they are alive and within the jurisdiction, and capable of testifying. When they are dead, abroad, or incapable, it is enough to prove their handwriting, which in that case, in the words of Mr. Justice Duncan, 6 S. & R. 811, £ is not only proof of the obligor’s signature, but it is presumption that it is a deed executed.’ Such being the difference of proof, where a deed is executed with or without subscribing witnesses, it seems to us that an alteration of it, after its execution, as respects the medium of proof, is a very material alteration of the instrument. As far as Renno was concerned, the bond was perfect, as to him, without witnesses; and it matters not that the addition of witnesses, in this particular case, could work no harm, and was made in ignorance or in innocence.
    “ The rule is imperative, that no material alteration can be made in a deed without avoiding it. The law looks to general consequences; and none could be more mischievous than that which would ensue from allowing such alterations as the one presented in this case. The argument upon the subject is exhausted in the learned opinion delivered by the Supreme Court, in the case read in your hearing, and commented upon by counsel, from 10 S. & It. 164. We think your verdict should be for the defendants.”
    Error assigned : The court erred in charging the jury that tlioir verdict must be for the defendants ; they should have charged in favour of the plaintiff, or left it as an open question to the jury to find, whether the subscribing witnesses’ names were put to the bond, intending them as witnesses to the execution of the bond by both obligors, or only to witness the execution of the bond by John Miller: and if the latter, their verdict should be for the plaintiff.

      Van Reed, for the plaintiff in error.
    The case of Marshall v. Gougler was misapprehended. It should have been left to the jury to decide, whether the attestation was made general by design, so as to import proof of execution by both obligors, or innocently, and by mistake.

      Banks and Smith, for defendants in error,
    contended, that the witnesses having subscribed their names to a general attestation, importing execution by both obligors, without seeing Renno sign the bond, and after he had executed it, avoided the bond. It altered the medium of proof. Had the witnesses been dead, proof of their handwriting would have established the bond as proved by them, which would have been untrue.

      June 22.
   Gibson, C. J.

The decision in Marshall v. Gougler, so far from sustaining the direction of the court below, is against it. In that case, the persons whose names appeared at the foot of the clause of attestation, were not present at any part of the act of execution; and one of them testified, that he subscribed his name at a subsequent time, when the obligee was going to assign the single bill, under a belief that he was called as a witness to the assignment, on which, it was held, the court properly left the jury to decide whether the alteration of the instrument was fraudulent or accidental. In the present, the witnesses saw one of the obligors, Miller, sign and seal; and the jury ought to have been instructed to inquire whether the form of the clause of attestation was purposely made general, by the contrivance of the obligee, to import an attestation of execution by both obligors, or whether it was done ignorantly and accidentally. If the witnesses subscribed it as it was prepared, without being practised upon by the obligee, the bond was valid. When Renno sealed it, he knew that it was to be sealed by Miller; and, instead of insisting on having separate witnesses to his separate act of execution, he consented to the course which was subsequently taken, and, therefore, to the consequences of it; but it is well settled that an innocent alteration does not vitiate. Where joint obligors sign and seal separately, it is usual to have separate sets of attesting witnesses; and had the scrivener, in this instance, specially noted, as he ought to have done, that the witnesses subscribed to attest the act of Miller alone, there would have been neither doubt nor difficulty, as to the validity of the instrument. The fact of execution by Renno would have been left open to general proof of his handwriting or acknowledgment; and what reasonable objection can he have to let the case stand on that foot as it is ? Had the witnesses died or gone beyond the jurisdiction of the court, proof of their handwriting would have been primd facie proof of execution by Renno as well as by- Miller ; but the fact might have been disproved, if the truth wrere so, by witnesses to the character of Renno’s handwriting, or the presumption from general attestation might have been rebutted by the testimony of the scrivener, or any other person present at the transaction. If Renno could not disprove his signature because it was genuine, there would be no harm done. The day for invalidating deeds for accidental alterations, even in material parts, has long gone by; and had the cause been put to the jury upon the honesty of the ease, there is no doubt that the verdict would have accorded with the justice of it.

Judgment reversed, and a venire de novo awarded.


author: Per Curiam.

text:
    In re Liberty Alley.
    The Court of Quarter Sessions having no powers over roads but those which it derives from statute, cannot, under the general road-law, entertain a petition for a jury to view and lay out or widen an alley into a street. Nor under a local law, conferring upon the court power to grant views for opening or extending any street, lane, or alley, can such a petition be entertained.
    This was a certiorari to the Quarter Sessions of Berks county.
    The proceedings had in the court below are stated in the opinion of that court, which was delivered by Jones, P. J., in these words: — ■

      “ On the 5th August, 1845, a petition was presented to the Court of Quarter Sessions of this county, setting forth ‘ that public convenience seemed to require that Liberty Alley, from Third Street to Front Street, in Leading, be widened into a fifty feet street, and praying the court to appoint proper persons to view and lay out, or widen, the said alley, agreeably to the act,’ &c._ Upon this petition a jury of viewers was appointed, who, on the 3d of November, 1845, reported that ‘ they had viewed and laid out the said Liberty Alley as and for a public street of the width of fifty feet; the widening, or additional thirty feet required, to be taken from the north side of said alley.’ This report was confirmed nisi, and within the proper time exceptions were filed.
    “ All the exceptions to these proceedings are in our opinion well taken. In the Church Road Case, 5 W. & S. 200, we are told that the Quarter Sessions has no powers but what it gets from the statute, and that with regard to public roads these are to lay out, or vacate, and to alter or change an established route by laying out or vacating in whole or in part. And in that case, the prayer for a view ‘ to widen, straighten, a.nd fix the limits’ of a road which had been laid out and used for more than a century, was held to be one which the court had no warrant to grant. Under the general road-law, then, it is obvious that this court had no authority to grant this view. Nor had it any authority for that purpose under the act of 1825 and 1826, secs. 2, 3, 4, Pamph. Laws, 115, for extending the time of holding the Quarter Sessions of Berks and Bucks, and for the better regulation of the borough of Reading. By that act, sec. 2, this court may grant views for opening or extending any street, lane, or alley, in the borough of Reading, neither of which powers, as we apprehend, will cover the prayer and object of this petition.
    “Let the proceedings be quashed.”
    The error assigned in this court was, that “ the court erred in quashing the proceedings for want of jurisdiction.”

      Soffman, for plaintiff in error.
    The petition here was framed under the act of 1826, sec. 2, Pamph. Laws, 115, and whether it can be sustained depends upon the construction of that act: Borough of Reading v. Green, 9 Watts, 382; Church Road Case, 5 W. & S. 200.

      Barclay, contrA
    The general road-law, by the act incorporating Reading, does not apply to that municipality, and in the road-laws of 1836, passed since that act of incorporation, there is a provision, sec. 81, saving local laws then in force. This case depends, then, upon the act of 1826, under which the court has no authority to widen an alley: In re Milford, 4 Barr, 313; 8 W. & S. 200; 1 Cow. 269; Young v. Martin, 2 Yeates, 312.
   Per Curiam.

Order of the Quarter Sessions affirmed, for the reasons given by the President of the court below.


text:
    Seibert v. Levan.
    Where tenant in fee erects a mill, -with a dam and race to supply the same, upon his land, and afterwards conveys that part of his land whereon are the dam and race, without any express reservation as to them in his deed: his grantee takes the land burthened with an easement in favour of the grantor, which the grantee is not at liberty to disturb.
    If one annexes peculiar qualities to his land, the alteration being palpable and manifest, a purchaser will take the land burthened or benefited, as the case may be, by the quality so annexed to it.
    In error from the Common Pleas of Berks county.
    The facts of this case are fully set forth in the charge of the. court below; and, as no other exceptions were argued in this court, either upon the argument in 1841, or upon the reargument in 1848, but those taken to the charge, it will be sufficient to present the case to the profession, as it was presented to this .court by the court below. Upon the trial there, Jones, P. J., charged the jury as follows:—
    “This is an action on the case for obstructing a certain race through which the water flowed to the plaintiff’s clover-mill.
    “ In 1830, George D. B. Keim was seised of a tract of land in this county through which flowed a stream of water, formed by the confluence of springs arising on the land, and of a stream of water flowing into it from land situated above it. The stream thus formed, flowed in its natural channel, through the lower part of the meadow on Keim’s land, into the tract below, and was used by him at the proper season of the year for the purpose of irrigating the meadow, by means of a ditch on the higher part of the meadow, and so much of it as was not consumed, flowed back again into the natural channel, by which it entered the farm adjoining below, the property of John Esterly.

      “ By Ms deed of the 28d March, 1830, John Esterly conveyed to Keim, in fee, the said farm adjoining him beloyf, containing about two hundred acres. Keim, having thus become the owner of both farms, in the same year erected on the lower farm a mill for cleanr ing clover-seed, &e., and for the purpose of supplying this mill with water, constructed a long ditch or race, principally on the upper farm, with a pond or dam near the mill (which pond was also on the upper farm), through which the water of the stream before mentioned was conducted out of its natural channel for the purposes of the mill at such times as it was thought necessary to put the mill in operation.
    “ On the 31st December, 1841, Keim conveyed that tract of land, on which the race and dam were, to Messrs. Muhlenburg & Schwartz, whose deed was recorded on the 9th April following. On the 6th August, 1842, Keim mortgaged that tract of land on which the mill was, to Jacob Bechtel and others. On the 22d October, 1842, Muhlenberg & Schwartz entered into articles of agreement with the defendants, acting as the agents of their mother; whereby they covenanted to convey to her a certain portion of the tract purchased by them of Keim, on which portion were the race and dam in question; and, in pursuance of those articles, they executed their deed to her on the 29th April, 1843. By virtue of a levari facias, on a judgment confessed by Keim upon the scire facias issued on the mortgage given by him to Bechtel and others, that tract still held by Keim, and on which was the mill,'was sold by the sheriff to the plaintiff, who received the sheriff’s deed therefor, on 5th November, 1844.
    “In neither of those deeds to Muhlenberg & Schwartz, or from them, is any mention whatever made of this race and dam; nor is there any reservation to Keim and his heirs or assigns of any right whatever to have the water íIoav through that race to the mill, or to enter upon the land uoav of the Levans, for the purpose of repairing, cleaning, or doing anything else to this race and dam. By the first of those deeds, the land passed absolutely, and without any restriction or reservation whatever in favour of Keim, to his grantees, who acquired the most entire and perfect dominion over it, the largest and most comprehensive known to our laws. Whatever may have been the relations and understanding beUveen Keim and his immediate grantees, with regard to this land, Mrs. Levan, in purchasing of them, was not required to go further than their recorded deed in fee; which was equally notice to Keim’s mortgagees of the lower tract, and to the purchasers from Keim’s

      grantees of the upper tract, of the extent of the rights of these last. That deed reserving no right to this race — no right to have the waters flow through it to the mill — no such right remained in Keim, or in those claiming under him, by any subsequent conveyance or encumbrance, of that lower tract. Mrs. Levan took the upper tract from Muhlenberg Schwartz, as their deed conveyed it to them, as fully and as amply, as free and as exempt from all reservations in favour of the oivner of the lower tract, as they had held it; and consequently she had a right to fill up that race, or divert its waters, at her own mere will and pleasure; and for the doing of this, no action can be maintained against her, or those claiming under her.

      “ The plaintiff has submitted to us six points, agreeably to -which, we are requested to charge you. We will take them up in their order:—

      “ 1. It is true that the rights of the plaintiff, who purchased at sheriff’s sale, under the mortgage by Keim to Bechtel and others, are the same as those of Keim, on the 6th of August, 1842, which was the date of the mortgage. Whatever right, title, or interest, Keim had in the lower tract on that day, was bound by this mortgage, which became the measure of the right, title, and interest of the sheriff’s vendee, under proceedings upon it. If Keim had then a right to the flow of water through that race, as appurtenant to the mill, or by virtue of any previous reservation or grant, such right would, we take it, have been bound by the mortgage, and would have passed to the sheriff’s vendee of the mortgaged premises. But, before that day, Keim had conveyed the upper tract, on idhich were the race and dam, in fee, without any reservation of such right, and on that day he had no such right that he could bind by mortgage. Me had no right to the flowing of the water in that race ; no right to enter upon that upper tract to clean or repair the race, or for any purpose whatever, save only by the sufferance of Muhlenberg and Schwartz.

      “2. The plaintiff is not entitled to recover under the sheriff’s deed, and that -whether the defendants did or did not give notice, as they allege. The right in this case does not in any manner depend upon the fact of the defendants having given notice at the sheriff’s sale, that they claimed this race.
    “ 3. However necessary and incident to this mill, this race may be, and notwithstanding it was occupied by the servants or tenants of Keim, and by the plaintiff, for fifteen years before suit brought, still, if Keim conveyed away the land, on which it is, in fee, when he had a right to do so, and made no reservation of it, all right to the easement here claimed was lost by him and by those claiming it under him.
    “ 4. The mortgage and sheriff’s deed given in evidence, do not convey the race in controversy as incident and appurtenant to the mill. If Keim had mortgaged the lower tract on which the mill is, before he conveyed the upper tract in fee, that might alter the case. But he could not have claimed incidents or appurtenances to his own land, in land by him conveyed to another in fee, without having reserved them in his deed to that other.
    “ The cases of ways of necessity, cited from Croke James, 170, and 2 Lutwyche, 1487, held to exist in favour of grantors, are of doubtful authority. The necessity here is self-created, and such a necessity could not be, in the words of Sergeant Williams, either in law or reason any justification of a trespass committed on another’s lands: Pomfret v. Pycraft, 2 Wms. Saund. 323, n. 6; and if it could not afford a justification for a trespass, supposing Seibert to be a defendant here, of course it can afford him no foundation for a right to recover, being a plaintiff.
    “ 5. Muhlenberg and Schwartz’s consent to Keim and his tenants using the dam and race after his deed to them and up to the date of his mortgage to Bechtel and others, as Keim had occupied and used it before his deed to Muhlenberg and Schwartz, does not entitle the plaintiff to recover. They might have permitted this use or not, as they pleased; it might have been even an adverse use, but whether permissive or adverse, it can give no right as against the Levans. They are not bound by the mere permission, express or implied, of Muhlenberg and Schwartz, nor are they bound by any adverse use short of twenty-one years. The moment the Levans came in they had a right to do with this land, whereon the race and dam are, what they pleased.
    “ 6. We -cannot say, that, under all the circumstances in this case, the law will imply a reservation of the right to the race by Keim when he conveyed to Muhlenberg and Schwartz. We cannot distinguish this case in principle from Collam v. Hocker, 1 Rawle, 108. And having that as a rule laid down to us by the highest tribunal in the state, it is our and your duty to conform implicitly to its authority.
    “ Your verdict should he for the defendants.”
    Verdict and judgment for defendants, whereupon this writ of error was sued out, and in this court those parts of the charge printed in italics, as well as the answers to the second and subsequent points of the plaintiff, were assigned for error.

      Smith and Davis, for plaintiff in error.

      Banks and Grordon, contó.
   The opinion of the court was delivered by

Gibson, C. J.

We have before us a case in which the proprietor of two adjoining tracts of land, through which ran a water-course to his mill on the lower one,-part of which was the natural bed of a small stream, and part of it a trench from a neighbouring creek, conveyed the upper tract expressly, without reserving the water-right, to a party who has obstructed the trench and cut off the supply of water from the creek. Such a water-course is analogous to a way of necessity, which is not extinguished by unity of seisin, the only difference being that in the latter the right has not been created during the unity, but existed antecedently to it. But the time, not of creating the right, but of parting with the land to which it was- attached, is the material circumstance. When the owner of a way sells the land through which it leads to a market, or a ville, or a church, he retains the way without an express reservation of it; and why? Because, as appears in Jordan v. Atwood, Owen, 121, and the several cases collected in Woolrych on Ways, 71, the law presumes he would not have parted with a part of the property to the ruin of the rest of it; and the presumption is practically founded in justice and truth. Is not a water-course as necessary to a mill as a way is to a ville or a church? Yet when the land is sold, the easement is retained on the principle of implied reservation. A right of way and a right of water-course, being alike subject to the general law of easements, are not distinguishable from each other in any essential particular. But we are not driven to analogies from association, however intimate; for it will be seen that there are several decisions, in cases of water-right, diréctly on the point before us.

The three principal ones adduced on the part of the defendant, are Burr v. Mills, 21 Wend. 292; Preble v. Reed, 17 Maine (5 Shepley), 175; and Hays v. Bowman, 1 Rand. 420. In the first of them, a small part of the tract above, which was sold by the owner of the mill, was covered by the pool of the dam; and in an action for the damage, Mr. Justice Cowen, delivering the opinion of the court, said: — “ It can make no difference that there was then a dam built which flowed this land. If a man convey land which is covered with his mill-pond, without any reservation, he loses his right to flow it. There is no room for implied reservation. A man makes a lane across one farm to another, which he is accustomed to use as a way; he then -conveys the former, without (expressly) reserving a right of way; it is clearly gone. A man cannot, after he has absolutely conveyed away his land, still retain the use of it for any purpose, without an express reservation. The flowing, or the way, is but a mode of use; and a grantor might as well claim to plough and crop his land.” An argument, by an analogy, to a right of water-course froni a right of way, which, -we have seen, may be retained without being expressly reserved, is merely a petitio principii; and the doctrine of the entire paragraph, being as applicable to natural as to artificial water-courses, would justify the filling up of a natural pond, used as a reservoir; which is surely not the law. Nor does the claim of a water-course of necessity bear any resemblance to a claim to plough and crop another’s land, which would merely be an idle and extravagant pretension. He admitted that the land would have remained subject to the easement, had the owner of it retained it and sold the mill; for which distinction, he cited Nicholas v. Chamberlain, Cro. Jac. 121; which clearly proves the particular position, but as clearly disproves his conclusion from it, as well as the whole doctrine predicated by him; for it was held by all the court, “ that if one erects a house and builds a conduit thereto in another part of his land, and conveys water by. pipes to the house, and after-wards sells the house, with the appurtenances, or sells the land to another, reserving to himself the house, the conduit and pipes pass with the house.” As the reservation of the house is not an express reservation of the pipes, it must be an implied one; and as we have seen that a vendee may set up an implied grant of a thing lying out of the limits of his conveyance, on the ground of necessity, we may infer that a vendor may, on the same ground, set up an implied reservation of something within them.

It is not by force of the word appurtenances that a water-course, like the present, would pass by the grant of a mill, but by force of the principle that the grant of a thing includes all the means in the grantor’s power to attain it; for the means shall pass inclusive without the words cum pertinentiis, or words equivalent to them: Touchstone, 89. The grant of the means, therefore, is an implied one, for it is certainly not expressed; and there is no imaginable reason why there should not be an implied reservation where the land is sold and the mill is retained. But to return to the defendant’s cases. The second of them, Prebles v. Reed, is a decision of' the same stamp, in which the same doctrine is asserted without a reason or an authority given for it, excepting an instruction reported to have been given on a supposed state of facts in Hathorn v. Stinson, 1 Fairf. 224, which seems, it was said, to have met the approbation of the whole court. In the third of them, Hayes v. Bowman, it was barely held that a man who had granted a part of his land divided from the rest of it by a river, and expressly to the middle of the stream, had not a right to erect a dam from shore to shore for the better enjoyment of his mill-seat; but the court did not determine what would have been the law of the case had a dam been erected before the land was sold. The decision is a sound one, but it does not touch the point before us.

The preceding cases make up the sum of what has been adduced as authority for the defendant; and we will now turn to the authorities on the part of the plaintiff. Besides Nicholas v. Chamberlain, which is full to the point, we have Sury v. Pigott, Palmer, 444, more fully reported in Popham, 166, and more intelligibly stated in Noy, 184. It seems from the last, that the case was this: A., seised of Whiteacre, with a house, curtilage, and hop-yard through which ran a stream to a pond in the curtilage for watering cattle, enfeoffed P., of the hop-yard above, and leased the house and curtilage to S. P. stopped the stream; and S. brought an action on the case for it; and the court held that the right of water-course had not been extinguished by the unity of seisin. Yet there, as here, the defendant obtained title to the ground above by the earlier grant. It was said by Dodderidge, that if “ a man having a mill and water-course over his land, sells a portion of the land over which the water-course runs; in such case, by necessity, the water-course remaineth to the vendor, and the vendee cannot stop it:” and Crew, Chief Justice, said that it 'had been adjudged accordingly in Day and Drake’s case, 3 Jac. 1, in the King’s Bench. The opinion of Chief Justice Popham in Lady Brown’s case was also cited by him, in which it was held that if one “ hath a stream of water which runneth in a leaden pipe, and he buys the land where the pipe is, and he cuts the pipe and destroys it, the water-course is extinct because he thereby declares his intention and purpose that he does not wish to enjoy them together”; the inference from which is, that if he had sold the land without cutting the pipes, the easement would have remained, and he instanced the case of a dye-house with water running to it, in which it was held that a purchase and subsequent sale of the land on which the water was current, by the owner of the dye-house, did not extinguish the easement.

These are ancient cases, but they seem to have been deeply considered, and founded in the soundest maxims of the laws. It is admitted that the owner of adjoining tracts traversed by a natural water-course, is as much entitled to the use of the water, having sold the upper one as if he had not owned it. The vendee would be entitled to a. reasonable use of it, returning it, when it had served his purpose, to its former channel, so as to make it enter the tract below at the point where it entered it at the time of the sale; and what difference could there be, whether the channel to lead it to that point were made by water or by the hand of man ? There is no particular charm in a gully cut by natural agents. While the grantor was lord of the whole, he might assign a permanent channel to the stream, and as regards himself or those to claim under him, impress it with any character he should see proper. There is no peculiar sanctity in the natural bed of a stream, which is perpetually changing its course from accidental causes. Had the connexion with the natural water-course leading from the springs to the mill, been made by a flood tearing its way through the bank of the creek, it would not have been pretended that the grantee, having purchased with the fact before his eyes, would have been at liberty to destroy it. But that it would have been entitled to no consideration as a dispensation of Providence, is shown by the undoubted right he would have to mend a breach made after his purchase. It is true the rule is, that water shall flow ubi currere solebat et coiu suevit; but that regards the duty of returning it, and not the nature of the channel. It was said by Dodderidge, in Sury v. Pigott, that as water descends it is always current, et aut invenit autfaeit viam; and he asked, “ Shall such a thing be extinguished which hath its being from creation?” And Crew said, “A water-course is a thing natural, and therefore by unity it shall not be discharged :” but that these things were said of the element without reference to the nature of its channel, is evident from Nicholas v. Chamberlain, and Lady Brown’s case, in which the easement was not lost though the water was conveyed through leaden pipes. The sum of the matter in regard to disposition by the act of an owner of two tenements, is thus condensed in Gale and Whatley’s Law of Easements, 52 : “ It is true that, strictly speaking, a man cannot subject one part of his property to another by an easement; for no man can have an easement in his own property, but he obtains the same object by the exercise of another right, the general right of property; but he has not the less thereby altered the quality of the two parts of his heritage; and if, after the annexation of peculiar qualities, he alien one part of his heritage, it seems but reasonable, if the alterations thus made are palpable and manifest, that a purchaser should take the land burthened or benefited, as the case may be, by the qualities which the previous owner had undoubtedly the right to attach to it.” The easement in the case at bar was palpable and permanent; and the defendant was not at liberty to disturb it. As the exceptions to evidence have not been separately argued, it is unnecessary to examine them in detail.

Judgment reversed, and a venire facias de novo awarded.

Rogers and Coulter, Js., dissented.


author: Bell, J.

text:
    Commonwealth v. Judges of Quarter Sessions.
    Where a new township was erected by the court out of a portion of an old one; an act of the General Assembly of the commonwealth, giving to the qualified voters of the said townships, the right and power to decide by ballot, whether the new township should be continued or annulled, is valid and constitutional.
    The decision in Parker v. Commonwealth, 6 Barr, 507, “settled nothing more than that the General Assembly of the commonwealth could not delegate to the people a power to enact laws by the exercise of the ballot, affecting the property and binding the political and social rights of the citizens. But the erection of a township, or the creation of a new district for merely municipal purposes or convenience in the transaction of the public business, is in no degree similar to the exercise of law-making: the one being an exercise of sovereignty, the other, in its very nature, a subordinate function.”
    This was a petition, ex relatione Henry Pbillippi, for a mandamus, to the Judges of the Court of Quarter Sessions of Lebanon county, to command them to appoint the relator constable of Washington township, Lebanon county, to which office he had been duly elected, upon the erection of the said township of Washington out of a portion of Bethel township, in said county, and to allow him to be sworn into office, or to show cause why a peremptory mandamus should not be issued, &c.
    A mandamus, thereupon, issued out of this court, in accordance with the prayer of the relator.
    The facts of the case are sufficiently admitted and stated, in the following return or answer of the court below:—
    “ The undersigned, Associate Judges of the Court of Quarter Sessions of the Peace, in and for the county of Lebanon, having been served with a mandamus, requiring us to administer to Henry Phillippi, who is alleged to be the constable of Washington township, elect, or allow to be administered to him the oath required by law, and also to allow to him all the rights and privileges pertaining to said office, as constable of Washington township, elect, or show cause to the contrary thereof,» make the following return thereto :
    “It is true, as stated in the mandamus referred to, that the records of the Supreme Court show that Washington township, in said county, was erected into a separate township, out of a portion of the township of Bethel, in said county.
    “ It is also true that the said Henry Phillippi was apparently elected to the office of constable, in and for the township of Washington, as appears in and by an election return, filed in our .said Court of Quarter Sessions, purporting to be the election returns of the township of Washington, in and by which election return it also appears that said election was held at the public-house of Samuel Groshert, in the alleged township of Washington, on Friday, the 17th day of March, A. D. 1848. There remains filed, also, in our said court, the return of an election held at the public-house of William Sarge, in the township of Bethel, on Friday, the 17th day of March, A. D. 1848, in and by wliich return it appears that John Desh was elected to the office of constable, in and for the said township of Bethel, who was duly sworn in as constable of said township, at our April Sessions, 1848. The usual place of holding the election for said township of Bethel, is at the public-house of William Sarge,' aforesaid.
    “By the 13th section of the act of the legislature, of the 8th day of March, 1847, Pamph. Laws, 257, the right was given to the qualified voters of the townships of Bethel and Washington, to decide by ballot, on the erection of Washington township. That, in pursuance of said act, the qualified voters of said townships did, on the 19th day of March, 1847, hold an election for that purpose ; the result of which was, two hundred and nine votes against the erection of Washington township, and eighty-two votes in favour thereof: all which records form part of our answer, and are to this return annexed.
    “ On the 10th day of April, 1847, another petition was presented to our said court, signed by thirty-four individuals, all residing in the district called Washington township, setting forth that the petitioners (who style themselves divers inhabitants of the township of Bethel) labour under great inconvenience in consequence of said township of Bethel being, from the peculiarity of its shape, ■ too large to afford the inhabitants of said township the advantages which were intended to be conferred upon them by the creation of minor subdivisions of that character, and praying the court to have the said township divided, according to a division-line set forth in their petition, and to appoint three commissioners to inquire into the propriety of dividing the township of Bethel, of said county, according to a division-line in said petition, particularly set forth. That we therefore appointed, on the 4th day of August, 1847, three commissioners, who, on the 1st day of November following, made their report in favour of the proposed division of Bethel township, according to the prayer of the petitioners; against which said report the following exceptions were filed, as well as reasons why the said township of Bethel should not be divided, to wit:—
    “ 1. The Court of Quarter Sessions had no authority to entertain and receive the petition upon which the proceedings are founded, at the time the said petition was presented to the court:
    “ 2. The division of said township is unnecessary, and bufthensome tó the inhabitants thereof generally.
    “ 3. The division of said township would not be for the convenience of the inhabitants generally, but only for the convenience of a small portion of the inhabitants thereof.
    “February ,19th, 1848. Depositions were filed in relation to the division of said township, and to the report of the commissioners; which depositions were taken under rules of our court, and were read to the court, upon the argument of the exceptions.
    “ January 11th, 1848. The report of the commissioners was disapproved of by this court: all which records above referred to, are hereto annexed, and form part of our answer to the above writ.
    “ On the 10th day of April, 1848, Henry Bhillippi appeared in open court, with unexceptionable security, and asked to be sworn in as constable of Washington township. The court unanimously refused to have the usual oath administered to the said Henry Bhillippi, as constable of the alleged township of Washington; and in support of our refusal to administer the said oath to the said Henry Bhillippi, the court, with this their answer, respectfully submit the records of our said court.
    “Witness our hands, and the seal of our said court, this 29th day of May, 1848, in the absence of the honourable N. B. Eldred, president of said court.
    William Bank,
    Henry Carmony.”
    The question here was, whether the 13th section of the act of Assembly of the 8th of March, 1841, Pamph. Laws, 251, giving to the qualified voters of the townships of Bethel and Washington, in Lebanon county, the right and power to decide by ballot, upon the continuance or annulment of the said township of Washington, which had been newly erected out of a portion of the said township of Bethel, by the Court of Quarter Sessions of Lebanon county, wore constitutional or not.

      L. Kline and J. Weidmcm, for relator.
    The act of 8th March, 1841, was unconstitutional, and consequently the judicial decree creating the township remained in full force: Parker v. Commonwealth, 6 Barr, 507; Rice v. Foster, 1 Law Jour. 198.
    The mode in which the election of constable was effected cannot be examined here. That can only be contested in the way provided by the acts of Assembly.
    The act of 1840 does not apply to cases where town ships are divided; it only applies to election districts.

      Ulrich, contrá.
    There were two legal objections to administering the usual oath of a constable to the relator, Henry Phillippi.
    In the first place, he claimed to be the constable of Washington township, in the county of Lebanon, when in fact it was manifest from the record, that there was no such township in the county of Lebanon. Although, from a portion of the record returned to this court, it would appear as if the township of Bethel had at one time been divided into two separate townships; upon examination, however, of the whole record, it will appear that upon the final proceedings, the court refused to divide the township of Bethel and to 'erect the township of Washington into a separate township. The so called township of Washington was not organized; neither had it any legal existence at the time the legislature submitted the propriety of erecting the township of Washington to the voters in the township of Bethel. The result of the vote taken upon the division of Bethel township, clearly shows that the division of said township was unnecessary. Whether that election was constitutional or not, cannot affect the relator’s case, for the inhabitants of Bethel township without exception, those opposed and in favour of the new township, acquiesced in that election, and in fact ratified it by their subsequent application for proceedings de novo.

    The remaining objection to administering the official oath to the relator, was still stronger than the former; for it appeared by the several election returns, and from the records of the Court of Quarter Sessions, that the election held in the so-called township of Washington, was an undue election and illegal, not having been held according to the 27th section of the act of 7th March, 1840, Purdon’s Digest, 898. The court were bound to take notice of such undue election, and could not conscientiously administer the official oath to the relator.

      June 28.
   Bell, J.

A new township called Washington having been erected out of the old township of Bethel, by commissioners appointed by the Court of Quarter Sessions of Lebanon county, the legislature, by the 13th section of the act of 8th March, 1847 (Pamph. Laws, 257), directed an election to be held within the townships of Bethel and Washington by the qualified voters, in order to determine by ballot, whether the new township should be continued or annulled. This question was to be determined by a majority of the votes polled. An election was accordingly held, and a majority of votes cast against the continuance of the new tbwnship. This result was duly returned to, and filed among the records of the court. The relator, Henry Phillippi, who was afterwards informally elected constable by the people residing within the territory of the proposed new township, claims that the act of 1847 is within the principle settled in Parker v. The Commonwealth, 6 Barr, 507, and therefore unconstitutional and void. But this position is founded in an entire misapprehension of the doctrine of that case. It settled nothing more than that the General Assembly of the commonwealth cannot delegate to the people a power to enact laws by the exercise of the ballot, affecting the property and binding the political and social rights of the citizens. But the erection of a township or the creation of a new district for merely municipal purposes, or convenience in the transaction of the public business, is in no degree similar to the exercise of law-making power. The one is an exercise of sovereignty, the other, in its very nature, a subordinate function. The latter, like the laying out of a public road or highway, or the erection of a bridge, may require the exercise of judgment and skill, but there is nothing either in the positive provisions of our constitution, or the genius of our institutions, which prohibits the action of other than the legislative bodies. Accordingly, at a very early day, the power of laying out roads and directing the building of county bridges was conferred upon the several Courts of Quarter Sessions, though still occasionally exercised by the legislature itself. So, too, by the act of 1834, the courts, acting through commissioners, are vested with the right to erect new townships and divide old ones. No one has ever doubted the constitutional right of the legislature to authorize the exercise of both these jurisdictions by the courts, because it has never been imagined that it bore any resemblance to the power of enacting laws. Indeed, it is so entirely dissimilar, that an elaborate attempt to show the contrast would be a mere waste of words. But if the legislature can authorize the courts to decide questions of this character, they can also authorize the people primarily to do so. The difficulty is simply as to the right to impart the power to act! If it can be given to a selected few, it may also be delegated to all the inhabitants of a district, unless positively prohibited. The previous action of the court in the premises makes no difference. The power of the legislature directly to repeal that action cannot be questioned, and that which they could do immediately may also be effected by the secondary means of a popular vote.

The statute which authorized the division by vote being thus shown to be constitutional, the refusal of the court below to swear the relator as constable of a township having no legal existence, was correct.

Peremptory mandamus refused.