text:
    McDade, Appellant, v. Philadelphia Rapid Transit Company.

      Negligence — Street railways — Biding on front platform.

    In an action against a street railway company it appeared that plaintiff while riding as a passenger on the front platform of an electric street car was apprehensive that there would be a collision with another car and attempted to go inside the car. He was pushed by others who were making the same attempt and was thrown down in the doorway and injured. The jury were instructed that if the plaintiff rode on the platform because there was no other place where he could stand, he could recover; but that, if they found from all the testimony that there was room inside the ear where the plaintiff could comfortably have stood, he could not recover. There was a verdict and judgment for the defendant. Held, that as the plaintiff's injury was the direct consequence of his riding on the platform, there was no error in the instruction given.
    Argued March 23, 1906.
    Appeal, No. 315 Jan. T., 1905, by plaintiff, from judgment of C. P. No.. 5, Phila. Co., June T., 1904, No. 1,725, on verdict for defendant in case of Thomas J. McDade v. Philadelphia Rapid Transit Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Davis, J.
    The court charged in part as follows:
    In order to find for the plaintiff, you must first find that the defendant was negligent. There was a collision; there is no doubt that there was injury to persons inside the car, and there is no doubt that the plaintiff was injured in consequence of that collision, to what extent it is for you to find. The next question is, was the plaintiff guilty of any contributory negligence ? Did he, by any act of his, become a part of that accident? If he did, he cannot recover, because where two parties cause an accident, neither can recover. If the plaintiff was negligent, it does not matter how negligent the defendant was, because, by his own negligence he debarred himself from recovery. The real question in the case is whether the plaintiff was guilty of contributory negligence, and let me.say to you at this point that it is the province of the jury to pass upon the facts of every case, as they get them from the witness stand, and from the probabilities and surrounding conditions. From the court you will take the law, and from no other source. [The Supreme Court has laid down the law in this state that a man standing on the front platform of a car, when there is room for him inside of that car, is standing in a dangerous place, and if he is injured, he cannot recover against the company operating the car.] [1] The plaintiff admits that he stood upon the front platform until the time that he saw the accident was imminent, until he saw that a collision was about to occur, and then he turned in the act of going into the car, and was pressed by those behind him on the platform and crushed down with others on top of him between the two sides of the door which slide open. The plaintiff says that he got on the car at Franklin street and Columbia avenue, and rode to Seventeenth and Columbia avenue, where the collision occurred, and that when he got on, the back platform and front platform were crowded, or, at least, the back platform and inside of the car were crowded, and he got on the front platform because there was no other room or place for him to stand. If that be true, he can recover. A gentleman who testified for the plaintiff said that he got on the car at some other place, but covered this same distance, and that the car was full, but, he says, at Twelfth street two ladies got in. It is for you to say, in view of that fact, whether the car could have been full, these two ladies having gotten in at that point, and having been given seats by gentlemen who arose. That is the testimony for the plaintiff.
    [On behalf of the defendant, the conductor testified that at Franklin street he had a full-seated load, that there were two or three upon the back platform and two or three in the rear end of the car inside, and at least one on the front platform, but that the standing room in the car was comparatively empty. If that be true, this man cannot recover if he stood upon the front platform.] [2] But the plaintiff is interested in this case because of his desire to get a verdict, a natural desire. The conductor is interested because of his desire to shield the company, also a natural desire. Waiving them aside, and coming down to the disinterested witnesses, we find, first, the witness who testified for the plaintiff, to whom I have already referred. He testifies that the car was full, and that at some point he was frightened at the speed of the car and wanted to get inside and could not, and also that at Twelfth street two ladies got in the car and got seats, the seats being furnished them by gentlemen who arose. Besides the plaintiff, jmu have got one witness on his side of the case. Apart from the conductor, we have, first a gentleman who rode all the way up from Fourth and Market streets on the car, and he said that alongside of him all the way out Columbia avenue there were two vacant seats. We have another man who got in at either Tenth street or Franklin street, and got a seat and was in that seat when the collision occurred. We have a lady who got in at Broad street and got a seat, and we have the testimony of others as to the fact that the body of the car was not crowded, although there may have been people standing.
    In addition to this oral testimony, you have before you the statement which was signed and sworn to by the plaintiff. That statement has been very severely criticised, but as business men you will take into consideration whether or not it is proper before a man to whom an accident has happened has been reached by other influences than yoiir own, to get a statement from that man as to how the accident happened, immediately, when everything is fresh. It is for you to decide whether that is proper or improper. You will take the statement for what it is worth and compare it with the testimony of the witnesses for the defendant. To a certain extent, it differs from the testimony given by the plaintiff to-day. Today he says that the car was full; in the statement he says that he cannot say how many passengers were on the car. Take the statement, take it with the testimony of all the witnesses ; make it, if you can, consistent with the other testimony in the case as to the condition of the car, as to its being crowded or empty, or cast it aside and depend entirely upon the verbal testimony. But the statement was made, read and signed by the plaintiff, and sworn to by him before the notary public; then it was handed over to the company, in whose possession it has since been. That is the testimony. You will take all of it, and take no suggestions from me, except as to the law; the facts are yours. I have no opinion, and no right to any opinion as to the facts. [I give you the testimony, and say to you that the law of this state is that if that man stood upon the front platform of that car, and there was room for him to be, comfortably, inside that car, he voluntarily put himself in a place of danger, and cannot recover.] [3] On the other hand, if the car was so crowded that he could not get in, he may recover. [If there were vacant seats, or even places to stand inside the car, he cannot recover, because it is common sense, as well as law, that the inside of a car is safer than- the platform, and a man who stands upon a platform when lie can go inside, voluntarily places himself in a position of danger, and must suffer the consequences of his action.] [4]
    April 30, 1906:
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1-4) above instructions, quoting them.

      Louis Bregy, with him H. Homer Bailey, for appellant,
    cited: Thane v. Traction Co., 191 Pa. 249; Kirchner v. Oil City Street Ry. Co., 210 Pa. 45; Gaffney v. Traction Co., 211 Pa. 91; Abel v. Traction Co., 212 Pa. 329.

      Thomas Learning, with him Owen J. Ltoberts, for appellee, cited:
    Thane v. Traction Co., 191 Pa. 249; Camden, etc., R. R. Co. v. Hoosey, 99 Pa. 492; Reber v. Traction Co., 179 Pa. 339; Bumbear v. Traction Co., 198 Pa. 198; Woodroffe v. Roxborough, etc., Ry. Co., 201 Pa. 521.
   Opinion by

Mr. Justice Fell,

The plaintiff while riding as a passenger on the front platform of an electric street car was apprehensive that there would be a collision with another car and attempted to go inside the car. He was pushed by others who were making the same attempt and was thrown down in the doorway and injured. The jury were instructed that if the plaintiff rode on the platform because there was no other place where he could stand, he could recover; but that, if they found from all the testimony that there was room inside the car where the plaintiff could comfortably have stood, he could not recover.

In Thane v. Traction Co., 191 Pa. 249, it was said by the present chief justice : “ The proper and assigned place for passengers is inside the car. Unless he shows some valid reason to excuse him, a passenger is bound to put himself in the appointed place, and if he does not he takes the risk of his location elsewhere. This is the settled rule of all our cases.” In that case there were vacant seats in the car and the decision was limited to the facts, but there was no intention to draw a distinction between the case of a passenger who could be seated if he so desired and one who could conveniently stand inside the car. The principle on which the rule is founded admits of no distinction. In the later cases of Kirchner v. Railway Co., 210 Pa. 45, and Gaffney v. Traction Co., 211 Pa. 91, it was said, citing Thane v. Traction Co., 191 Pa. 249, that riding on the platform of an electric car when there is available room inside is negligence per se.

Since the plaintiff’s injury was the direct consequence of his riding on the platform, there was no error in the instruction given.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Fell,

license: Public Domain

text:
    The William H. Moudy Manufacturing Company v. Pennsylvania Railroad Company, Appellant.

      Railroads — Eminent domain — Widening—Measure of damages.

    In a proceeding against a railroad company to assess damages for a strip of land taken to widen the railroad company’s right of way, it is error to charge that there can be a recovery for the value of the land in any event, and that this value as a distinct item should enter into the verdict. In such a case the measure of damages is the difference between the market value of the whole tract of land with its buildings before the appropriation, and the market value of what remains after the appropriation.
    The value of the land is to be determined, not only by the use to which it is put at the time of the condemnation, but by any use to which it was then adapted or to a prospective use which at the time gave it a market value. It is the present conditions and not future possibilities which are to be considered.
    Argued April 16, 1906.
    Appeal, No. 334, Jan. T., 1905, by defendant, from judgment of C. P. Huntingdon Co., Feb. T., 1903, No. 15, on verdict for plaintiff in case of The William H. Moudy Manufacturing Company v. Pennsylvania Railroad Company.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Appeal from award of jury of view. Before Woods, P. J.
    See William H. Moudy Manufacturing Co. v. Pennsylvania Railroad Co., 212 Pa. 156.

      Plaintiff presented the following points:
    1. The Pennsylvania Railroad Company, the defendant, under its right of eminent domain, having condemned a strip of land owned by the plaintiff company, which strip of land is of the length of 300 feet and of an average width of thirty feet, and having taken the said strip for railroad purposes, the plaintiff company is entitled to recover for the actual market value of the land so taken. Answer: This point is affirmed if the jury believe from the evidence that no street existed and that all the land belonged to the plaintiff; otherwise, it would only be entitled to twenty feet by 300 feet. [1]
    3. The railroad company, having taken under its right of eminent domain a strip of land belonging to the plaintiff, the plaintiff is entitled to recover the actual value of the land taken. In considering such value they are to consider the uses to which the land was or could be put, and all other circumstances shown by the evidence in any way tending to affect the value thereof; and this will be the first item of the verdict. Answer: This point is affirmed. [2]
    7. In estimating the damages the jury are not to be limited to any particular use of the land, but the adaptation of the property in question to any particular use, to which it has been or may be applied, is a proper element to be considered by the jury in estimating its market value before and after the change was made by the defendant company. Answer: This point is affirmed. [3]
    Verdict and judgment for plaintiff for $6,500. Defendant appealed.

      Errors assigned were (1-3) above instructions, quoting them.

      John D. Dorris, for appellant.
    The affirmance of plaintiff’s third point was erroneous : Spring City Gas Light Co. v. R. R. Co., 167 Pa. 6; Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411.

      Thomas F. Bailey, for appellee.
    In estimating the damages the jury are not to be limited to any particular use of the land: Shenango & Allegheny R. R. Co. v. Braham, 79 Pa. 447; Wilson v. Equitable Gas Co., 152 Pa. 566; Harris v. R. R. Co., 141 Pa. 242; O’Brien v. Ry. Co., 194 Pa. 836.
    April 30, 1906:
   Opinion by

Mr. Justice Fell,

The general rule in estimating damages resulting from the appropriation of a part of a tract of land in the exercise of the right of eminent domain was correctly stated in the charge, but the answers to the plaintiff’s points on the subject were not free from error. The plaintiff is a manufacturing corporation and owned a piece of land 182 by 300 feet on a part of which its main factory and other buildings were situated. The defendant in order to provide better siding facilities for this and other manufactories in the vicinity appropriated a strip of land about thirty feet wide and extending along one side of the plaintiff’s property. Whether any damage had been sustained by the plaintiff was a disputed question of fact at the trial.

By the first point the court was asked to charge that the plaintiff was entitled to recover the actual market value of the land taken. This request was repeated in the third point with the addition that the market value ascertained “ will be the first item of the verdict.” By the affirmance of these points the jury were instructed that there could be a recovery for the value of the land in any event and that this value as a distinct item should enter into their verdict. This was error. The measure of damages was the difference between the market value of the whole tract of land with its buildings before the appropriation and the market value of what remained after the appropriation. As stated by Justice Elkin in the opinion of the court on the former appeal in this case, see Moudy Mfg. Co. v. R. R. Co., 212 Pa. 156, there has been no departure from this rule announced nearly a century ago in Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 411. The value of the land taken was an element of damages, to be considered in connection with the injury or advantage to the remainder in fixing the market value after the appropriation, but there could be no finding for the value irrespective of the advantage to the remainder.

It is argued that by the use of the words “ may be ” in the seventh point in the sentence, “ In estimating the damages the jury are not to be limited to any particular use of the land, but the adaptation of the property in question to any particular use, to which it has been or may be applied, is a proper element to be considered,” etc., the jury were allowed to consider possible future conditions in fixing the market value. The value was to be determined not only by the use to which the land was then put, but by any use to which it was then adapted or to a- prospective use which at the time gave it a market value. It was, however, the present conditions and not future possibilities that were to be considered. In view of the instruction in the general charge we do not think that the jury were misled by the affirmation of this point. The fourth assignment is not sustained for the reason that the question overruled was afterwards substantially repeated and answered by the witness. The first and second assignments are sustained and the judgment is reversed with a venire facias de novo.


text:
    Thompson, Appellant, v. Pennsylvania Railroad Company.

      Negligence — Railroads—“Stop, look and listen” — Fire engines.

    The drivers of fire engines and hose carriages are not excepted from the operation of the rule which requires drivers to stop, look and listen before going on the tracks of a steam railroad. The rule is imperative, and without exceptions.
    A fireman who knows that it is the custom of the drivers of fire engines to look and listen, but not to stop before going upon a grade crossing, assumes the risk.
    Argued March 19, 1906.
    Appeal, No. 369, Jan. T., 1905, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1905, No. 2,515, refusing to take off nonsuit in case Thomas Thompson v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Beitler, J.
    The opinion of the Supreme Court states the case.

      Error assigned was refusal to take off nonsuit.

      April 30, 1906:

      David Davis, for appellant.
    The negligence of the driver cannot be imputed to the plaintiff: Coleman v. R. R. Co., 195 Pa. 485; Freeman v. Phila., 7 W. N. C. 45; Dean v. R. R. Co., 129 Pa. 514; Crescent Twp. v. Anderson, 114 Pa. 643; Carr v. Easton City, 142 Pa. 139; Bunting v. Hogsett, 139 Pa. 363.; Robinson v. R. R. Co., 66 N. Y. 11; Dyer v. Ry. Co., 71 N. Y. 228; Masterson v. R. R. Co., 84 N. Y. 247; Geary v. Ry. Co., 84 App. Div. 514 (82 N. Y. Supp. 1016) ; Morris v. Ry. Co., 63 App. Div. 78 (71 N. Y. Supp. 321) ; Bailey v. Jourdan, 18 App. Div. 387 (46 N. Y. Supp. 399) ; Little v. Hackett, 116 U. S. 366 (6 Sup. Ct. Repr. 391) ; Brennan v. Ry. Co., 60 App. Div. 264 (69 N. Y. Supp. 1025) ; Seaman v. Koehler, 122 N. Y. 646 (25 N. E. Repr. 353) ; McCormack v. R. R. Co., 16 App. Div. 24 (44 N. Y. Supp. 684); Hobson v. N. Y. Condensed Milk Co., 25 App. Div. 111 (49 N. Y. Supp. 209).

      M Jacquet Sellers, of Sellers Rhoads, for appellee.
    Plaintiff was in no better position than a mere guest or companion of the driver and would seem to come within the rulings of cases applying to such relations : Greenwood v. Railroad Co., 124 Pa. 572; Dean v. R. R. Co., 129 Pa. 514; Snyder v. Penn Twp., 14 Pa. Superior Ct. 145.
   Opinion by

Mr. Justice Fell,

The plaintiff was in the employ of the fire department of the city of Philadelphia, and while riding on a hose carriage on his way to a fire was injured in a collision at a grade crossing of the defendant’s road. When about 250 feet from the tracks, the driver slackened the speed of his horses, but without stopping drove on the tracks at a slow trot and the front of the carriage was struck by an engine. The driver on this occasion followed the usual custom of the drivers of the fire department in going to a fire, which was to slacken the speed of the horses at a railroad crossing and look and listen, but not to stop. Of this custom the plaintiff knew. He testified : “ In approaching a railroad we always pull up within 200 or 250 feet and listen and look to see if there is anything in view; ” and the foreman of the engine company called by him testified: “We always slacken up, not at that time but all the time we go to a fire; my order is for the drivers to slacken np and they always do about 250 feet or so before we come to the railroad in case there is a train coming and no flagman there.”

The drivers of fire engines and hose carriages are not excepted from the operation of the rule which requires drivers to stop, look and listen before going on the tracks of a steam railroad. The rule is imperative and without exceptions. In this case the plaintiff knew when he started that a stop would not be made at the crossing, and he assumed the risk to which he exposed himself and made the negligence of the driver his own negligence. The case is clearly ruled by Crescent Twp. v. Anderson, 114 Pa. 643, and Dean v. Penna. Railroad Co., 129 Pa. 514.

The nonsuit was properly entered and the judgment is affirmed.


author: Mr. Justice Potter,

text:
    Farmers Deposit National Bank of Pittsburg v. Western Pennsylvania Fuel Company, Appellant.

      Landlord and tenant — Impeachment of landlord’s title — Banks and hanking —National hank.

    A tenant in an office building owned and in part occupied by a national bank cannot set up as a defense in an action for rent that the bank had no power under its charter to erect an office building and rent out offices. The rule that a lessee cannot impeach the title of his lessor for any cause except fraud, applies in such a case.
    The question of the power of a national bank to erect such a building is a matter for the federal government alone.
    Argued March 14, 1906.
    Appeal, No. 24, Oct. T., 1906, by defendant, from judgment of Superior Ct., April T., 1905, No. 183, affirming order of C. P. No. 3, Allegheny Co., May T., 1904, No. 487, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Farmers Deposit National Bank of Pittsburg v. Western Pennnsylvania Fuel Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ,
    Affirmed.

      April 30, 1906.
    Appeal from Superior Court. See 29 Pa. Superior Ct. 69.

      Error assigned was judgment of the Superior Court.

      George O. Bradshaw, for appellant.

      Samuel Me Glay, with him Reed, Smith, Shaw $ Beal, for appellee.
   Opinion ey

Mr. Justice Potter,

The plaintiff in this case brought an action of assumpsit to recover rent, claimed to be due by the defendant for offices in its building known as the Farmers Bank Building, Pittsburg. Defendant in its affidavit of defense, admitted the contract and the nonpayment of the rent claimed. But it alleged, that it had abandoned the premises and surrendered them to plaintiff before the rent accrued, and that plaintiff had refused to accept the surrender. It further alleged as a defense that plaintiff was a corporation organized and chartered under the national banking act, and as such had no power to purchase, lease, rent, deal in or hold real estate, except such as was necessary for its immediate accommodation in the transacting of its business, or such as it might obtain as security for or in satisfaction of previously contracted debts; that the building in which the offices leased to defendant were situated was not owned or held by plaintiff for any of the purposes allowed by the act of congress, but for an entirely different and foreign purpose; that said building was twenty-two stories in height and only one-fourth of the first floor was oc cupied by the plaintiff as a place for transacting its business; that the remainder of the first floor is occupied by a large entrance to the office building, a state bank, a jewelry store, and for other purposes, and all of the rooms in the twenty-one stories above the first floor are leased to corporations and individuals for purposes entirely unconnected with plaintiff’s banking business; that the building containing the leased premises was erected and held by plaintiff in violation of the laws of the United States, at enormous expense, out of its capital or surplus and was wholly unnecessary for carrying on its banking business, but was erected for another and different purpose, the investment of its funds in a manner forbidden by law; that, therefore, plaintiff had no power to enter into the lease sued on and defendant was not bound by any of the terms and covenants contained therein.

The court of common pleas made absolute a rule for judgment against defendant for want of a sufficient affidavit of defense, and the Superior Court affirmed this judgment.

In the opinion of the latter court, the question of the power of a national bank to invest its funds in the erection of a large office building, in part of which its own offices are located, was not passed upon. The affirmance was based upon the ground that “ a lessee cannot impeach the title of his lessor for any cause except fraud.”

We think this ground was well taken, and the decision of the case might well rest upon that point. “ The law is well settled that where a person is in possession of property, and leases it to another and puts him in possession, the tenant cannot object to the title of his lessor, who can recover for rent, or for use and occupation if no rent was agreed upon : ” Gleim v. Rise, 6 Watts, 44, (45).

And the same principle is thus stated in Trickett on Landlord & Tenant in Penna. sec. 756. “By accepting a lease and the possession of the premises in pursuance of it, the tenant precludes himself from effectively refusing to pay the rent on account of the defects of the title of the lessor. He may be compelled to pay the rent, despite such defects, if any, and therefore proof of such defects is irrelevant and inadmissible in actions of assumpsit for the rent.” The rule that a tenant cannot impeach or question the title of his landlord, except for fraud, applies also, when the tenant has vacated the premises before the rent sued for has accrued: Howard v. Murphy, 23 Pa. 173.

In that case Justice Woodward said (p. 175): “The plaintiffs in error are to be considered as occupying under the lease with Murphy’s (the landlord’s) agent, for if they did not remain in the actual possession of the premises, they might have done so. They were not evicted or disturbed in their possession by any title paramount to Murphy’s, and if they turned themselves out, it was their own fault and no reason for refusing the stipulated rent. A tenant cannot be compelled to occupy the premises he leases. If he chooses that they shall stand vacant, his will is law to himself, but let him not imagine that his caprice, or change of interest, will excuse his payment of the rent.” This statement applies closely to the facts of the present case.

But it is urged in the argument for appellant, that the contract of leasing was ultra vires, and therefore void, for the reason that the bank had no power to invest its funds in the erection of an immense office building, vastly greater than anything required for its own use, in carrying on the business of banking. But if the bank has exceeded its powers in this respect, we think it is for the government to call it to account, and private parties cannot directly or indirectly usurp this function of the government. With regard to the infraction of a similar provision of the law, Justice White says, in Schuyler National Bank v. Gadsden, 191 U. S. 451, “ it is no longer open to controversy, that the provisions of the statutes of the United States forbidding the taking of real estate security by a National Bank, for a debt coincidently contracted, do not operate to make the security void, and thus enable the individual who has contracted with the bank to defeat recovery, but simply subjects the bank to be called to account by the government for exceeding its powers.” Substantially the question now under consideration, ivas passed upon in Brown v. Schleier, 118 Fed. Repr. 981. Judge Thayer there said (p. 988) : “ It is urged, in substance, that the lease was ultra vires the bank, because it undertook, in violation of sec. 5137 of the revised statutes, to erect a building on the demised premises, which it did not contemplate using ‘for its immediate accommodation in the transaction of its business,’ but did intend to rent in part to third parties.”

After pointing out that a national bank has the right to lease as well as purchase property with a view to securing an eligible location, the opinion goes on “Nor do we perceive any reason why a national bank, when it purchases or leases property for the erection of a banking house, should be compelled to use it exclusively for banking purposes. If the land which it purchases or leases for the accommodation of its business is very valuable, it should be accorded the same rights that belong to other landowners, of improving it in the way that will yield the largest income, lessening its own rent and rendering that part of its funds which are invested in realty most productive. There is nothing, we think, in the national bank act, when rightly construed, which precludes national banks, so long as they act in good faith, from pursuing the policy above outlined.”

The reasoning in this case, commends itself to our judgment. But in any event it is certainly safer to leave the matter of any alleged violation of the national banking act, in dealing with real estate, to be determined by the govermnent. “ Power is usually expressly given (to banks) to own realty sufficient for a place of business. . . . The effect of exceeding its powers, and buying or taking land beyond its authority, is usually in this country no more than the risk of forfeiture of franchise at suit of the sovereign. The title is good: ” Morse on Banks & Banking (4th ed.), sec. 55.

It appears clearly from the decisions of the supreme court of the United States in such cases as National Bank v. Matthews, 98 U. S. 621, and National Bank v. Whitney, 103 U. S. 99, that violation of the prohibitory clauses of the banking act makes the association liable only to such penalties as may be imposed in proceedings instituted against the bank, by the government.

The assignments of error are dismissed, and the judgment of the Superior Court is affirmed.


author: Mr. Chief Justice Mitchell,

text:
    In re Supervisor of Nether Providence Township. Anderson’s Appeal.

      Statutes — Construction—“ Shall ’ ’ — Judicial discretion.

    The word “shall” when used by the legislature to a court is usually a grant of authority, and’means “may,” and even if it is intended to be mandatory it must be subject to the necessary limitation that a proper case has been made out for the exercise of the power.

      Public officers — Supervisor—Failure to file bond — Vacation of office — Act of March 16, 1860.
    The Act of March 16, 1860, P. L. 174, which provides that certain offices shall be declared vacant if the official fails to file a bond within one month after Ms election, is not mandatory irrespective of the reasons for the failure to file the bond. The word “shall” in the act means “may.”
    The court of quarter sessions has no authority to remove a supervisor where the uncontradicted answer of the officer states that within thirty days after the election, he appeared before the auditors, in accordance with the custom for some years past to ascertain the amount of his bond; that he was informed of the required amount, and that at the next meeting, a few days after the expiration of the month from the election, he filed with the auditors a bond in the required amount with two citizens whom he averred to be ample sureties; that he was informed that the auditors would keep the bond and consider it; that a few days afterwards he was informed that the auditors desired a bond with a trust company as surety; that not receiving further notice as to the time of meeting, as he was led to expect, he prepared and filed shortly afterwards a bond with a trust company as surety; and that this bond was and still is in the possession of the auditors.
    Argued Feb. 5, 1906.
    Appeal No. 233, Jan. T. 1905, by-Samuel E. Anderson, from order of Q. S. Delaware Co., vacating office of supervisor In re Petition of Removal of Supervisor of Netber Providence Township.
    Before Mitchell, C. J., Fell, Bkown, Elkin and Stewakt, JJ.
    Reversed.
    Petition for removal of Samuel E. Anderson, Supervisor of Nether Providence Township.
    The petition averred that the respondent had not filed his bond within one month after his election as required by the Act of March 16, 1860, P. L. 174.
    Anderson filed an answer the substance of which appears in the opinion of the Supreme Court.
    The court in an opinion by Johnson, P. J., held that the second section of the act of March 16,1860, was mandatory in its terms, and that the court was bound to grant the prayer of the petition.

      Error assigned was the order of removal.

      A. B. Geary, for appellant.
    The filing of the bond and the acceptance and holding of it by the auditor made the appellant supervisor de jure and the act of 1860 is not mandatory: Stephens v. Potter, 4 W. N. C. 375; Rice’s App., 158 Pa. 157 ; Com. v. Slifer, 25 Pa. 23; Shartzer v. School District, 90 Pa. 192; Com. v. McCarter, 98 Pa. 607; Com. v. Reno, 25 Pa. C. C. Rep. 442; Gearhart v. Dixon, 1 Pa. 224; Walker v. Edmonds, 197 Pa. 645; Cowan’s Estate, 184 Pa. 839; Becker v. Street Railway Co., 188 Pa. 484; State v. Ruff, 4 Wash. 234 (29 Pac. Repr. 999); Smith v. Cronkhite, 8 Ind. 134; Albaugh v. Titsworth, 145 Ind. 356 (44 N. E. Repr. 355); City of Chicago v. Gage, 95 Ill. 593.
    May 7, 1906:
    No paper-book nor appearance for appellee.
   Opinion by

Mr. Chief Justice Mitchell,

Appellant was elected a supervisor of the township of Nether Providence on February 21, 1905. On May 4,1905, a petition of citizens was filed in the quarter sessions and subsequently on rule to show cause, etc., the court declared the office vacant for failure to enter security as required by law.

The Act of March 16, 1860, P. L. 174, provides in section 2 that “ any officer or officers failing to give the security required by the first section of this act within one month after his election, then his or their offices shall be declared vacant, and the court of quarter sessions shall appoint one or more who shall hold his or their office till the next election.” The learned judge below held this section to be mandatory without regard to the reasons for the failure of compliance. This construction raises the only question in the ease.

Section 1 of the act provides that “ it shall be the duty of the township auditors and borough councils to require .... supervisors of the roads in each township and borough .... before entering upon their duties to give bond, with security, to be approved by the auditors or borough councils, in a sum not less than double the probable amount of the tax which may come into the hands of said officers,” with a proviso that each officer may give security individually, and have only a several liability for his own acts.

It was held in Stephens v. Potter, 4 Weekly Notes of Cases, 375, that the omission of a supervisor to give bond does not ipso facto oust him from office, at the end of thirty days. “ It required ” said this court, per curiam, “ judicial action to declare the office vacant. The duty is cast in the first instance upon the township authorities to require the bond to be given.” And this requirement it is to be further observed is not an immaterial formality, for the bond and security are to be approved by the auditors or borough councils, in a sum not less than double the probable amount of the tax which may come into the hands of the said officers. Such “ probable amount ” is an estimate at best and the duty and power to make such estimate, at least in the first instance rest upon the town, ship authorities. Until they have fixed the sum the new officer cannot reasonably be charged with knowledge of the required amount of his bond.

In Rice’s Appeal, 158 Pa. 157, a supervisor was ousted and his office declared vacant for failure to give bond within thirty days from his election. It appeared that no meeting of the township auditors had been held until more than thirty days after the election, but that at the first meeting the appellant had appeared and offered his security, but the auditors had refused to accept it on the ground that he was indebted to the township in a small sum, which, however, he disputed. This court said the conduct of the auditors was unwarranted, and reversed the judgment of ouster.

These cases settle the point that notwithstanding the use of the imperative “ shall,” the second section is not mandatory in the sense of barring the court from the use of judicial discretion in determining whether the command of the statute has really been disobeyed. “ The word ‘ shall,’ when used by the legislature to a court is usually a grant of authority, and means ‘may,’ and even if it is intended to be mandatory it must be subject to the necessary limitation that a proper case has been made out for the exercise of the power: ” Becker v. Lebanon, etc., St. Ry. Co., 188 Pa. 484. “ Where the words are affirmative and relate to the manner in which power or jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the power or jurisdiction itself they will in general be so construed” (as directory): Shauswood, J., Pittsburg v. Coursin, 74 Pa. 400, citing Bladen v. Philadelphia, 60 Pa. 464.

The intent of the present act is not to defeat the will of the electors by ousting newly elected officers, nor to make an opportunity for the other officials of the township to do so, but to secure the proper safeguards of the public funds before the new officials begin to handle them. In that interest it is important also that the interval should be brief between the termination of the security under the old officers and the attaching of the security under the new. What the statute intends to provide against is not a temporary omission, irrespective of all circumstances, to enter the prescribed security, but a default on the part of the officer, an omission not legally excused.

The act itself contemplates that the officer may not be to blame, for though the loss of the office may, in the public interest, be the inexorable penalty, yet section three provides that “ any officer failing to give the security required shall not be liable for the penalty imposed by existing laws upon township and borough officers refusing to serve, provided that the auditors and borough councils shall be satisfied that such security could not be obtained.” The penalty referred to is under the Act of April 15, 1884, sec. 85, P. L. 537, under which any person appointed or elected to any township office except constable and neglecting or refusing to serve should forfeit the sum of $20.00 — a reminder of the far away days when public office was regarded as a private burden, e. g., the minutes of the council of Philadelphia for October 3, 1704 record that “Alderman Griffith Jones is elected Mayor, of which he accepted, and moved that the ¿£20 fine laid upon him for refusing to accept of the Mayoralty the last year, may be remitted to him, and it is granted,” and on October 1,1706 “Alderman Story refusing to accept of the office of Mayor, therefore he is fined by this common council, the sum of twenty pounds.” 1 Watson’s Annals 58-59.

The appellant in the present case in his answer to the rule to show cause, etc., stated that within thirty days after the election, he appeared before the auditors, in accordance with the custom for some years past, to ascertain the amount of his bond; that he was informed of the required amount, and at the next meeting, a few days after the expiration of a month from the election, he filed with the auditors a bond in the required amount with two citizens whom he averred to be ample sureties; that he was informed that the auditors would keep the bond and consider it; that on the following Saturday he was informed that the auditors desired a bond with a trust company as surety; that not receiving further notice as to the time of meeting as he was led to expect, he prepared and filed on April 20 a bond with the Cambridge Trust Company as surety; and that this bond was and still is in possession of the auditors, but notwithstanding that the petition and order of vacation of his office were subsequently filed and allowed to proceed. These facts were not denied and they show that the failure to comply with the directions of the statute was not the fault of the appellant but of the auditors.

The judgment is reversed and the petition directed to be dismissed with costs.


author: Mr. Chief J üstice Mitchell,

text:
    Muehlhof, Appellant, v. Boltz.

      Equity — Contract—Rescission—Discovery—Costs—Dismissal of bill.

    Where a bill in equity for the rescission of a contract by reason of fraud fails as a whole, but a portion of it is sustained as a bill for discovery, the bill may be dismissed with costs imposed upon the defendant.

      Equity — Equity practice — Amendment of bill.

    Where an amendment to a bill in equity is moved and objected to and the hearings continued without any disposition of the amendment having been made, the court will not allow the amendment after the hearings have been closed.

      Contract — Rescission—Laches.
    The rescission of a contract must be applied for promptly and if possible while the parties can be restored to their original position.
    Argued Feb. 12, 1906.
    Appeal, No. 70, Jan. T., 1605, by plaintiff, from decree of C. P. Schuylkill Co., Maj*- T., 1904, No. 4, dismissing bill in equity in case of Gustav A. Muehlhof and Charles Franklin Muehlhof, trading as Muehlhof Brothers, v. William K. Boltz.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity to rescind a contract.
    Before Shay, J.
    The court found that the evidence did not sustain the charge of fraud and misrepresentation, but that the defendant failed to disclose to complainants prices at which he was furnishing yarn until April, 1904.

      May 7, 1906:
    The court dismissed the bill, but imposed the costs upon the defendant.

      Error assigned was the decree of the court.

      George M. Roads, with him John E. Whalen, for appellants.
    The amendment should have been allowed : Miller v. Billington, 184 Pa. 583; Pottsville Water Co. v. Schuylkill Nav. Co., 11 Pa. C. C. Rep. 635; Bailey v. Pittsburg Coal R. R. Co., 139 Pa. 213; Simonds v. Parker, 42 Mass. 508 ; Daley v. Iselin, 212 Pa. 279; Comth. v. Crum Lynne Iron & Steel Co., 27 Pa. Superior Ct. 508; Hughes v. Antill, 23 Pa. Superior Ct. 290; Ins. Co. v. Storrs, 97 Pa. 354; Jeannette Borough v. Roehme, 9 Pa. Superior Ct. 33.
    If the vendor permitted the vendee who had no knowledge of the business to contract with him on the faith of his statements of value, he was bound not merely to believe, but to know that they were true : Bower v. Fenn, 90 Pa. 359; Lake v. Weber, 6 Pa. Superior Ct. 42; Jack v. Hixon, 23 Pa. Superior Ct. 453; Brady v. Standard Loan Assn., 14 W. N. C. 419; Wilson v. Getty, 57 Pa. 266 ; Keemle v. Conrad, 35 Legal Int. 262; Brotherton Bros, et al. v. Reynolds, 164 Pa. 134; Nace v. Boyer, 30 Pa. 99; Rockafellow v. Baker, 41 Pa. 319; Cummings’s Appeal, 67 Pa. 404.

      Edmund J). Smith, with him Arthur J. Pilgram, for appellee,
    cited as to laches: Howard v. Turner, 155 Pa. 349 ; Hilliard v. Allegheny Geometrical Wood Carving Co., 173 Pa. 1; Mahaffey v. Ferguson, 156 Pa. 156.
    Cited as to use of the property after rescission: Dunn v. Columbia Nat. Bank, 204 Pa. 53; Fowler v. Meadow Brook Water Co., 208 Pa. 473 ; American Home Savings Bank Co. v. Trust Co., 210 Pa. 320.
    Cited as to inability to restore the status quo: Lynch’s App., 97 Pa. 349; Graham v. Pancoast, 30 Pa. 89; Nace v. Boyer, 30 Pa. 99; Du Bois Boro. v. Water Co., 176 Pa. 430.
   Opinion by

Mr. Chief J üstice Mitchell,

Appellants purchased from defendant the leasehold of a mill and the stock on hand, contracts for yarn, etc., in short, the plant as a going business. This is a bill to rescind the sale on the ground of fraud in its procurement. The learned judge below considered a large mass of evidence with manifest care and patience and there has been nothing brought forward here to require an extended discussion of the details.

The facts may be summarized briefly. After several months of negotiation appellants made the purchase in March, 1903, took immediate possession and ran the mill until the middle of July, when they stopped work, as averred, for want of yarn, and remained closed until September, when they resumed, büt not on full time. In April, 1904, this bill was filed.

The bill charged that appellants having no experience in the milling business, informed the defendant that they would rely upon him for all information in regard to it. . They therefore asked the court to apply the rule that where a vendor permits the vendee to contract with him on the strength of his statements he is bound not merely to believe but to know that they are true. The court so held, citing, inter alia, Bower v. Fenn, 90 Pa. 359.

The principal representations complained of were, first, that the vendor was doing a business of $65,000 a year, on which there was a profit of four per cent, and plaintiffs could make the same. As to this the court found that the representation was made as to the amount of business and the profit, but it was not shown to be untrue and there was no guarantee that plaintiffs could make such profit.

2. That vendor had contracts already on hand for finished products which would keep the plant running for two years. This the court found was not proved. On the contrary, the representation and the agreement were that he had some contracts still running which he would turn over to appellants, and that he had done so.

3. That vendor had contracts for yarn sufficient to enable the mill to fulfill all the contracts for manufactured goods, and these he would turn over to the appellants. This was really the hinge of the case, as it was the failure of the supply of yarn upon which the bill rested the compulsory stoppage of the mill in July. The court found that the representation as to yarn was only that the vendor had contracts which he thought would carry him through the season. These he did not turn over, because tbe other parties to the contracts would not agree to an assignment of them while the price of yarn was rising. Instead, therefore, of turning over the contracts, defendant continued to order yarn in his own name, delivered it to appellants, and bought yarn for appellants in the open market until they owed him over $3,000 and he refused to furnish more. The court therefore found that whatever failure there was to keep the agreement as to the yarn and the yarn contracts was due to appellants themselves.

Some other and minor representations were considered by the court, but he found either that they were not made or if made were not shown to be untrue, and they do not require discussion here.

One matter the court found in appellants’ favor, though his action upon it is argued as error. Defendant purchased yarn for appellants, as discussed under paragraph three, supra, but in rendering bills to appellants he failed to inform them of the prices he paid, and whether they were under his contracts or for purchases in the open market. This information the court held that he should have furnished, saying “We are of the opinion, therefore, this portion of complainant’s bill is sustained, but as they are now in possession of this information through the evidence of the defendant, no order of court is now necessary, but from the fact that complainants only obtained the desired details to which they were legally entitled, by the filing of their bill, defendant should pay the costs of this proceeding.” The court therefore in dismissing the bill decreed that the defendant should pay the costs. Appellants argued that this finding requires that the bill should have been sustained and an account decreed. It is quite true that a plaintiff who has established his cause of action, as of the time his bill was filed, is entitled to have a decree in his favor even though it may appear that the further aid of the court may not be required at the time of the decree: Gray v. Citizens’ Gas Co., 212 Pa. 473. But the present case does not come within this principle. The cause of action set up in the appellants’ bill was fraud in the inducements to the sale which entitled appellants to rescind. The proof failed. The fraud alleged was not shown, and the facts on the main issue were all found against the plaintiffs, But the court found that though there was no such fraud in the inception of the agreement as entitled plaintiffs to rescind, and though defendant was in no default before August, when he received a letter asking for information as to the contracts and prices for yarn, yet he had at that time failed to furnish the full information as to those items proper to be known in the final settlement between the parties. The bill therefore as a whole failed, but a subordinate part of it might have been sustained as a bill for discovery had it been filed for this purpose only and its purpose would have been accomplished and a decree for costs would have been all the relief the plaintiffs required. The court found this was the state of facts in the case, and decreed accordingly. We see no error in this action.

On the whole case the court was of opinion that none of the material allegations of fraud were established, “ and in many the weight of the evidence is on the side of the defendant. Boltz received but $8,000 in cash, was secured for $2,000 more, which left a balance of $4,100 of the purchase price of this plant unsecured. He pledged his own credit in the purchase of the raw material, and parted with his stock on hand with no security but the honesty of the complainants, of which there is no question. Surely under this undisputed state of the case, it must be apparent that he had a deep interest in the success of these young men, and we find on the subjects of complaint we have considered there was no fraud. With all these alleged subjects of complaint it will be noticed that complainants operated the mill a whole year and never took any legal steps until Boltz sent them the bill of March 25, 1904, showing their indebtedness to him, when their letter declaring a rescission followed on March 31, 1904, and this bill about the 2nd of April.”

After this summary the learned judge continued: “ There is one question still to be considered and that is the representation as to the machinery. There was no paragraph in the original bill as to false representations concerning the machinery, and no evidence taken on that point until some considerable time after taking of testimony had begun, and always under defendant’s objection that there was nothing in the bill to warrant such inquiry. On May 4th, 1904, complainants asked for a rule to show cause why an amendment should not be allowed, which was served, but never disposed of, and was brought up at the final hearing for disposition. . . . This rule for amendment should have been disposed of before the hearing to adjourn, and as defendant closed, relying upon his objections which were well taken, we think it would be inequitable to allow this amendment now.”

In refusing the amendment the learned judge added the further reason that for any misrepresentations as to the machinery, appellants would have an adequate remedy at law in the defense to suits on the notes or the mortgage. Whether this is so or whether having failed to make it, as they might have done, a part of their present case, it is now res adjudicata, we express no opinion. On the ground stated by the learned judge the amendment was offered too late and was properly refused for that reason.

The court further based its dismissal of the bill on the delay in filing it, and on the impossibility of restoring the status quo. After referring to the rule that rescission must be applied for promptly and if possible while the parties can be restored to their original position (citing Howard v. Turner, 155 Pa. 349 ; Mahaffey v. Ferguson, 156 Pa. 156; and Fowler v. Meadow Brook Water Co., 208 Pa. 473), he said, as early as August 15, 1903, “complainants were alleging fraud and breach of contract, and yet they continued to operate the mill until Boltz attempted to collect their indebtedness to him on March 25, 1904, a period of seven months, when they declared rescission, and even then kept in possession and operated the mill. Their notice of rescission came too late. . . . At the time of the offer of rescission, complainants were indebted to defendant in the sum of $2,376.11 for stock furnished them by defendant, and for material ordered by defendant on his own credit, and on which he was personally liable, and turned over to complainants, and one of the promissory notes given in payment of this plant had already been indorsed over to a third person. In their letter of rescission, there is no mention of this, no offer to pay this or to make any provision for the same, and complainants had also used the machinery for a period of one year. The status quo could not be restored, was not attempted to be restored, and we are clearly of the opinion rescission in this case is out of the question.”

The law as to both these grounds is correctly stated, and either by itself would suffice to sustain the dismissal'of the bill, but as the fraud which was the necessary basis of relief under any view, was found not to exist, it is not necessary to go farther.

Decree affirmed.


author: Pee Curiam,

text:
    Hoover, Appellant, v. Strauss.

      Will — Devise—Buie in Shelley’s case.

    The testator after devising a house to his grandson A, for life, charged with a valuation of $1,200 and an obligation to keep in repair, provided in his will that “after the death of my said grandson A, I give and devise said house and lot of ground as above described unto his children. To have and to hold the said described property with the appurtenances, unto his children, their heirs and assigns forever." And in a later clause directing the division of his general estate he provided that “one other equal one-fifth share thereof I give and bequeath to the three children of my daughter," A being one, “but A is to have twelve hundred dollars less than the others, the amount I charged against him for the house and lot which I have given to him during his lifetime as before mentioned, their heirs or legal representatives." Held, that the rule in Shelley’s case did not apply, and that A took a life estate only.
    Argued Feb. 26, 1906.
    Appeal, No. 213, Jan. T., 1905, by plaintiff, from judgment of C. P. Berks Co., Dec. T., 1904, No. 53, on case stated in suit of Albert It. Hoover v. Cameron E. Strauss.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Case stated to determine marketable title to real estate.
    From the record it appeared that plaintiff claimed a fee in the land under the will of his grandfather, George Reinhold, and that he contracted to sell the land to defendant for $2,000. The material portions of < the will are quoted in the opinion of the Supreme Court.
    The court entered judgment for defendant on the case stated.

      Error assigned was in entering judgment for defendant on the case stated.

      May 7, 1906:

      Foster S. Biehl, for appellant.

      William J. BourJce, for appellee.
   Pee Curiam,

The testator after devising the house to his grandson, Albert Hoover, for life, charged with a valuation of $1,200 andan obligation to keep in repair, provided in his will that “ after the death of my said grandson Albert Hoover, I give and devise said House and Lot of ground as above described, unto his children, to have and to hold the above said described property with appurtenances, unto his children, their heirs and assigns forever.” And in a later clause directing the division of his general estate he provided that “ one other equal one-fifth share thereof I give and bequeath to the three children of my daughter, Ann, Albert, George and Laura R. Hoover, but Albert is to have $1,200 loss than the others, the amount I charged against him for the House and Lot which I have given to him during his lifetime as before mentioned, their heirs or legal representatives.”

It is argued by appellant that in this latter clause the testator has used words which bring the devise within the rule in Shelley’s case, and that this construction must carry with it the language of the first devise to Albert with remainder to his children. But there is no occasion to do this. Testator’s intent is clear and his language is not within any rule that requires his actual intent to be disregarded. Children is primarily a word of purchase, and is never to be construed otherwise except where the testator has clearly used it as a word of limitation. See Keim’s Appeal, 125 Pa. 480, a much stronger case than the present. There is nothing in this will to indicate any such use. The words “ heirs and assigns” and “ heirs or legal representatives” in the clauses quoted do not refer at all to the grandson Albert but to his children to indicate that they were to take in -fee. Prior to our wills act unless such words were used the children would have taken only life estates, and the previous custom of conveyancing has in many cases been continued' ex abundanti cautela.

Judgment affirmed.


text:
    Reading City v. Reading and Southwestern Street Railway Company, Appellant.

      Street railways — Paving streets — Municipalities.
    Where, in an action by a city against a street railway company to recover the cost of repaving part of a street, it appears that the company failed to do the work after thirty days' notice as required by ordinance, the company cannot, without showing actual loss, defend on the ground that under the ordinance its obligation was only to repave its portion at the time the city was repaving the rest, and that the city did not do its portion of the work until several months after the expiration of the notice, and that competition was limited to two kinds of asphalt instead of three as provided by ordinance.
    Argued Feb. 26, 1906.
    Appeal, No. 226, Jan. T., 1905, by defendant, from judgment of C. P. Berks Co., Aug. T., 1903, No. 2, on verdict for plaintiff in case of City of Reading v. Reading and Southwestern Street Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Assumpsit to recover the cost of repaving part of a street.
    The defendant presented the following points :
    The notice which the city of Reading gave to the defendant company to pave with asphalt between the rails and outside thereof to the limit of the sills (known as the right of way) the parts of streets in question, in conformity with the provisions of the ordinance approved March 9, 1894, must be construed with reference to the provisions of the said ordinance, and the said ordinance being to the effect that street railway companies shall pave, repair or repave the portions of streets occupied by them, with the same kind of material with which the city paves, repairs or repaves, and at the time when the city does the work, and the said ordinance being also to the effect that when the city paves, repairs or repaves any street, it shall be the duty of railway companies, after notice served upon them pursuant to the action of councils, to pave, repair or repave the said portions of streets as aforesaid, within thirty days, and upon their refusal or neglect so to do councils shall order the said work to be done at the cost of the railway company; the city must have at the time of the giving of the said notice been actually paving, repairing or repaving the said streets outside of the portions occupied by the defendant railway company, or at least must have been prepared to start the said work, so that the railway company could do its part of the work at the time when the city should do the remainder of the work, and the city having at the time of the giving of the said notice not been ready to proceed with its part of the work and in fact not having then any contract for that purpose, and not having then even advertised for bids therefor, or finally determined the quality of material to be used the notice was not the one contemplated by the said ordinance, and was nugatory, and there was, therefore, in contemplation of law no notice to the defendant company to pave, repair or repave the said portions of streets. Answer: Reserved and not read to the jury.
    The notice which the city of Reading gave to the defendant company to pave with asphalt between the rails and outside thereof to the limits of the sills (known as the right of way) the parts of streets in question, in conformity with ordinances of March 9, 1894, and April 22, 1898, must be construed with reference to the provisions of the said ordinances and the ordinance of April 22, 1898, aforesaid, being to the effect that the streets named therein embracing the portions thereof occupied by the defendant company, shall be paved with sheet asphaltum which must be equal in quality to Alcatraz, Trinidad or Bermudez asphalt, and the city of Reading having subsequently to the giving of the said notice to the defendant company, that is to say, on August 11, 1898, by ordinance amending the ordinance of April 22,1898, aforesaid, and striking out one of the species of asphalt, viz.: Alcatraz, named as a standard in the earlier ordinance, thus limiting competition and creating a basis for the doing of the work different from that upon which the notice was given to the defendant company, whereby the notice so given to the defendant company became inapplicable and nugatory, and the defendant company having elected to allow the city to do the work on the basis of the original ordinance with three grades or kinds of asphalt in competition with each other, the city after such election by the defendant company, changed the basis for the work without giving the defendant company further notice, thus depriving the defendant company of an election to do the work upon the new basis, and the defendant company being so deprived of an opportunity itself to do the said work, the city cannot recover from the defendant company any part of the cost thereof under a contract with respect to which the defendant company was not consulted, to which the defendant company was not a party, and to which the defendant company had no opportunity of becoming a party. Answer : Reserved (and not read to jury).
    May 7, 1906:
    Verdict and judgment for plaintiff for $3,418.05. Defendant appealed.

      Error assigned was in entering judgment on the verdict for ^plaintiff.

      Cyrus Gr. Derr, for appellant.

      Isaac. Hiester, with him William J. Rourlce, for appellee cited: Philadelphia v. Hood, 211 Pa. 189.-
   Opinion by

Mr. Chief Justice Mitchell,

Appellant being under obligation to keep the street pavement within its right of way in repair received a notice to repave the same with asphaltum within thirty days,' and, paying no attention to the matter, the city did the work and now sues for the cost.

The jury have found that the pavement on the parts of the streets in question was out of repair, and it is - not contested •that the new pavement directed was within the authority of the city under the ordinances to require when the city itself should pave the rest of the streets in the same manner. But appellant makes defense on two points, first, that under the ordinance its obligation was only to repave its portion at the time the city was repaving the rest, whereas by the notice in the present case it was required to do its work in thirty days, though the city did not intend and in fact did not do its portion until several months later. Secondly, that the ordinance •having specified that the asphalt should be equal in quality to ■Alcatraz Trinidad or Bermudez, appellant in electing to let the city do the whole work had a right to rely on the competition between .these three'kinds.to secure a moderate price, etc., whereas after the notice to appellant the city had changed the standard of asphalt by throwing out Alcatraz and limiting the competitive bids to the other two kinds.

Either of these grounds would have been good as a basis of defense, at least pro tanto to the extent of injury to appellant, but neither, nor both together, amounted without more to a bar to the action. It was necessary for the defendant to go further and show some loss or disadvantage to itself. For all that appears the time may have been the most advantageous and the materials the least expensive that could have been selected. The provision of the ordinance that the appellant might be called upon to repair at the time the city should be doing its part was not a strict limit on the city’s power as if it was an acceptance of an option or the demand of a debt due on a day certain. It meant that there was to be reasonably concurrent action by the two bodies in the improvement which it was their joint duty to make. So, too, the reduction of the kinds of asphalt from three to two was not in itself such an entire change of the plan of paving as to require a new notice to appellant and a new opportunity to make an election. Under the ordinance the primary duty of the appellant was to do the repaving itself upon receipt of notice. But it chose to avail itself of the stipulated alternative and let the city do the whole. It might have raised the objections then, but it did nothing. Thereby it accepted the provision that it should repay the city the cost of its share of the work unless it could show that it had been subjected to loss by the city’s departure from the letter of the ordinance. No attempt was made to do this. The principles applicable are fully discussed in the recent analogous case of City of Philadelphia v. Hood, 211 Pa. 189, which sustains the action of the court below.

Judgment affirmed.


author: Per Curtam,

text:
    Reeser, Appellant, v. Philadelphia & Reading Railway Company.

      Railroads — Sidings—Contracts.
    The owners of mills and factories have a statutory right in Pennsylvania to connect their private sidings with the railroads in their vicinity, and they cannot be deprived of this right by an agreement between a railroad company and a landowner that no other switch or siding shall be made in a particular locality, except that upon the land of the owner in question.
    Argued Feb. 28, 1906.
    Appeal, No. 18 Jan. T., 1906, by plaintiffs, from decree of C. P. Berks Co., Equity Docket, 1904, No. 866, dismissing bill in equity in case of J. Pearson Reeser and George O. Reeser v. Philadelphia & Reading Railway Company and William F. Krick.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Bill in equity for an injunction.
    From the record it appeared that the defendants, the Philadelphia & Reading Railway Company and William F. Krick, proposed to construct a switch and siding on Krick’s land so as to connect with buildings in which Krick was engaged in the coal, feed and grain business. The plaintiffs were successors in title to one George Ruth who on June 23, 1854, conveyed certain land to the Lebanon Valley Railroad Company in consideration, inter alia, of the following covenant:
    “The Lebanon Valley Railroad Company covenant and agree to pay the damages as above stipulated, and also to make a switch and siding uj)on the land of the said George Ruth, and that the depot for Sinking Spring shall be upon the land of George Ruth, and that no other depot shall be erected at Sinking Spring; or switch, excepting the said switch shall be necessary for the accommodation of the said Company.”
    Plaintiffs claimed that by reason or their agreement no sidings could be constructed upon Krick’s land.
    Ermentrout, P. J., filed an opinion which was in part as follows:
    Under the statutes and decisions, the defendant, Krick, cannot be deprived of the siding proposed to be constructed. The Act of February 19, 1849, section 18, P. L. 79, provides: “ That upon the completion of any railroad authorized as aforesaid, the same shall be esteemed a public highway for the conveyance of passengers and the transportation of freight, subject to such rules and regulations in relation to the same .... as the president and managers may prescribe and direct.” It is a right recognized by different acts of assembly, in force when the agreement was made. We refer to the following: Act of April 16, 1838, sec. 11, P. L. 462:
    “No person shall construct any building, wharf, platform, switch, sideway, lateral railroad or crossing place, or make or apply any device whatever on the grounds set apart for, or belonging to, or forming part of, or on the banks or excavation of any railroad as aforesaid, without permission being given under the authority of .... the managers of the pi’oper railroad company .... provided, that nothing in this act shall prevent any corporation authorized to make a railroad, or individual owning land contiguous to a railroad, from laying rails on his or their land and connecting the same with such railroad, in such manner as shall be directed by the managers thereof.”
    Act of March 28,1840, P. L. 196: “ That the several provisions of the act entitled,4 An act regulating lateral railroads,’ passed May 5, 1832, shall extend to ... . the owner or owners of land, mills, quarries, coal or other mines, lime kilns or other real estate in the vicinity of any railroad, canal or slackwater navigation made or to be made hereafter by any company, individuals or by the State of Pennsylvania; provided, that if the parties interested cannot agree upon the mode, manner or point of connection with such railroad, canal or slackwater navigation, the same shall be determined by the jury to be appointed by virtue of the provisions of the first section of the act to which this is a supplement.”
    The Act of May 5, 1832, referred to, gives authority to the owners of land, mills, etc., in the vicinity of any railroad, etc., and not more than three miles distant therefrom, to make a railroad thereto over any intervening lands.
    The Act of March 13, 1847, P. L. 337, makes it lawful in all cases where two railroads are or shall be constructed by .the .company owning either of the railoads to run its cars and locomotives upon the other railroad, “'.provided, that nothing herein contained shall be construed or interpreted to release or exonerate any company owning a railroad from the obligation and duty which may be now imposed by existing laws of transporting, subject to the rules and regulations of said companies, by locomotive steam engines, the cars, whether loaded or empty, of all persons and companies who may require such transportation over and along so much, and such parts of their railroad as locomotive steam engines shall be run upon, whether they be run by the company owning the road, or by any other company.”
    Our Supreme Court, having in view the general duties of the railroad companies and the rights of the citizen, say: “It is conceded that, under our acts of assembly, the owners of mills and manufactories may of right connect their private sidings with, the railroads in their vicinity:” Pittsburg and Lake Erie R. R. Co. v. Robinson, 95 Pa. 426.
    The plaintiff cannot, therefore, ask a court of equity to enjoin Mr. Krick from carrying out his rights under the law, and the company is not in a position to refuse what the law allows him.
    The granting to defendant company “of a right to construct a railroad carries with it, by necessary implication, the right to construct all works and appendages usual in the convenient operation of a railroad. Sidings are among such works. The right of running sidings to such private establishment, and of taking the necessary land for the purpose, is clearly within the constitutional power of the legislature to confer, because the public interest is thereby subserved by reason of the increased facilities afforded for developing the resources of the State and promoting the general wealth and prosperity of the community: ” Getz’s App., 10 W. N. C. 458.
    It is-inconsistent with its duties to the public and against the policy of the law for the railroad company to agree with a private individual to restrict its facilities for accommodating .those who have occasion to use its road: Lynn v. Mount Savage Iron Go., 34 Maryland, 603.
    But even if this principle were not correct, the right of .the landowner, when desirable and necessary, to have a siding constructed from his land to the railroad, is well recognized, and private contracts not to permit a siding must necessarily yield. Certainly no court of equity ought to be asked to enforce such private contract against an individual.
    The agreement also expressly permits the construction of any siding or switch necessary for the accommodation of the company. It is immaterial whether it will, at the same time, accommodate any of its patrons.
    The word “ accommodation ” means convenience; the word “ necessary ” does not mean absolutely requisite. The necessity must be held to be reasonable and not an absolute one. This interpretation is consistent with the decisions.
    In Harvey v. Lloyd, 3 Barr, 331, discussing the meaning of the words “ necessary and useful for public or private purposes,” in the Lateral Railroad Act of 1832, it was held that the terms “necessary and useful for public or private purposes” are to receive a reasonable construction.
    “ That the necessity contemplated by the statute is only such as is found in giving a reasonable facility for reaching the public improvements; that the law intended to secure to owners of mines within the prescribed distance, upon paying the assessed damages to intervening owners, such reasonable facilities for reaching the public improvements, as would enable them to bring the mineral wealth to market. . . . The courts have uniformly given this construction to a similar phraseology in the general road laws, and by all of them it has never been supposed that any absolute necessity was intended; that if the convenience of the public, and the facilities of general travel would be increased, the road was always deemed necessary.” This case was followed in the case of Hays v. Briggs, District Court of Allegheny County, 3 Pittsburg, 504.

    A similar interpretation was placed upon these words in Chalcraft v. Louisville, Evansville and St. Louis Railroad Co., 113 Illinois, 86, where “ the word ‘ necessary ’ in the statute requiring railroad corporations to construct farm crossings 4 when and where the same may become necessary for the use of the proprietors of the lands adjoining such railroad,’ was used in its more popular sense, and is equivalent to the words 4 reasonably convenient.’ ”

      May 7, 1906:
    The agreement in question must be interpreted by the application of these principles to it. No doubt the company could continue to do as it had heretofore done, and in a measure supply some of the wants of its patrons, even though the shifting and removal of cars and the standing of cars may interfere with the quickness of shipment and the facilities of service to its patrons, but it is clear from all the testimony that the construction of the new siding is reasonably necessary in order that it may afford to all of its patrons those reasonable facilities for prompt and ready shipments and service that all railroad companies ought to give their patrons.
    The prothonotary is directed to enter the following decree nisi:
    And now, to wit: February 6,1905, this cause came on further to be heard, whereupon it is ordered, adjudged and decreed that the bill be dismissed and that the plaintiffs pay the costs.

      Error assigned whs decree dismissing the bill.

      Eenry Maltzberger and E. E. Green, of Green Green, for appellants.

      Snyder Zicber, for the Philadelphia & Reading Ry. Co.

      George W. Wagner, for William F. Krick.

       See also Com. ex rel v. Gilligan, 195 Pa. 504. Reporter.

   Per Curtam,

The learned judge below found that the agreement with Ruth was valid as to him and binding on the Philadelphia & Reading Railroad Company as the successor of the Lebanon Valley Railroad Company, the original party. But he also found that Krick, the other defendant, as an adjoining landowner, had a statutory right to connect with the railroad by a switch or siding of which he could not be deprived by any agreement of the railroad with a third party.

The judgment is affirmed on so much of his opinion as covers this branch of the case.


author: Pee Ctjeiam,

text:
    Marsh v. Lehigh and New England Railroad Company, Appellant.

      Railroads — Crossings—Contract—Equity.
    Where a duty to maintain a crossing by a railroad company rests entirely in contract, equity has jurisdiction to compel the restoration of the crossing when it has been obstructed by the railroad company. The remedy provided by section twelve of the Act of February 19, 1849, P. L. 79, is applicable only where a railroad company constructs its road on lands taken in the exercise of the right of eminent domain.
    Argued March 5, 1906.
    Appeal, No. 71, Jan. T., 1905, by defendant, from decree of C. P. Northampton Co., April T., 1904, No. 2, on bill in equity in case of Cyrus C. Marsh v. Lehigh and New England Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Bill in equity for a mandatory injunction.
    Schuyler, P. J., filed the following opinion:
    By deed dated June 8, 1889, one Stoneburner, a predecessor in title of the plaintiff to the land involved in the present controversy, conveyed to the Pennsylvania, Poughkeepsie and Boston Railroad Company, the predecessor in title of the defendant company, a strip of land in fee simple, said strip dividing the unsold portion of the land into approximately two equal parts. The purpose of said conveyance was to furnish the Pennsylvania, Poughkeepsie and Boston Railroad Company with a site over which to extend its road by means of an embankment ten or twelve feet high, covering the entire strip, and the embankment was constructed accordingly by said company. In part consideration for their deed the company covenanted “ to erect and maintain a suitable road crossing as provided by law.” Stoneburner parted with his title to one Anthony in the year 1896, and the crossing stipulated for as aforesaid not having as yet been provided, and the defendant having succeeded to the franchise and liabilities of the Pennsylvania, Poughkeepsie and Boston Railroad Company, it was agreed between Anthony and the defendant that the crossing should take the form of an opening through the embankment, which was accordingly made and so continued until May 20,1902, the plaintiff having succeeded to Anthony’s title iii the meantime. On the date last mentioned, the defendant closed' the opening, which is the injury complained of. The prayer of the bill is for a mandatory injunction to restore the opening.
    May 7, 1906:
    Substantially the only defense set up is want of jurisdiction in this court to grant the relief prayed for on the theory that section 12 of the Act of Feb. 19, 1849, P. L. 79, 2 Purd. 1796, prescribes a different remedy that is full, adequate, complete and consequently exclusive. I cannot accept this theory. As I read said section it applies only where a railroad company constructs its road on lands taken in the exercise of the right of eminent domain, and when that happens the duty to maintain a crossing is imposed by the statute creating the duty.- In the case at bar the' duty rests entirely in contract, which differs the case from Dimmiek v. D., L. & W. R. R. Co., 180 Pa. 468, so much relied on by defendant. Nor can I accept the theory that the injury suffered by. the plaintiff can be easily compensated by a common-law action, for- the injury is a continuing one requiring many actions. Moreover, the act causing the injury was done suddenly during the temporary absence of the plaintiff, who promptly protested against it as soon as discovered, elements that are persuasive in application for mandatory injunctions.
    And now, November 21, 1904, this cause came on to be heard at this term, and was argued by counsel, and upon consideration thereof it is ordered, adjudged and decreed that the defendant restore the opening described in the plaintiff’s bill to its former condition as it was on May 20, 1902, immediately before its obstruction by the defendant, within twenty days after notice of this decree served upon him. It is further ordered that the defendant pay the costs.

      Error assigned was the decree of the court awarding mandatory injunction. .

      E. J. Fox, with him J. TP. Fox, for appellant.
    TP". S. Kirkpatrick, of Kirkpatrick Maxwell, for appellee.
   Pee Ctjeiam,

The decree is affirmed on the opinion of the court below.


author: Per Curiam,

text:
    Stauffer v. East Stroudsburg Borough, Appellant.

      Statute of limitations — Eminent domain — Boroughs—Act of March 27,1713, 1 Sm. L. 76.
    The general statutory proceeding to assess damages for property taken, injured or destroyed in the eases of the right of eminent domain is not within the purview of the general statute of limitations of March 27, 1713.

      Boroughs — Waters—Eminent domain.

    While a borough has the power to construct a reservoir and conduct water to its inhabitants, it has no right to furnish the water to persons outside the borough limits.

      Boroughs — Eminent domain — Taking of water — Witnesses—Expert testimony — Evidence.
    In a statutory proceeding against a borough to recover damages for injuries to land resulting from the appropriation of a stream for a reservoir, witnesses who show that they had general knowledge of the stream and the values of property in the neighborhood may testify as to the value when the water was taken fifteen years before the trial in the statutory proceeding, although it appears that their knowledge of the place where the water was taken was practically confined to the examination made a short time before the trial, with the purpose in view of estimating the flow of the water, and arriving at the injury by the taking.
    Where water is taken from a stream by a borough for a reservoir, the damages are to be assessed as of the date of the appropriation, and not as of the date of the institution of the proceedings to recover damages.
    Argued March 5, 1906.
    Appeal, No. 248, Jan; T., 1905, by defendant, from judgment of C. P. Monroe Co.; Dec. T., 1904, No. 4, on verdict for plaintiff in case of George E. Stauffer v. East Stroudsburg Borough.
    Before Mitchell, G. J., Fell, Bbown, Mestbezat and Elkin, JJ.
    Affirmed.
    Appeal from award of jury of view.
    At the trial there was a verdict of judgment for plaintiff for $1,641. Defendant appealed.
    On a rule for a new trial Staples, P. J., filed the following opinion:
    In substance the first reason for new trial was the refusal of defendant’s point that the appropriation and taking by the defendant borough was in the year 1889, and the plaintiff was therefore barred by the statute of limitations.
    It needs no further comment than reference to the case of Keller v. Harrisburg and Potomac Railroad Co., 151 Pa. 67, and cases there cited, where the principle is clearly enunciated that “ the general statutory proceeding to assess damages for property taken, injured or destroyed, in the cases of the right of eminent domain is not within the purview of the general statute of limitations of March 27, 1713.”
    The plaintiff proceeded under hiá statutory right for damage alleged to have been suffered for one appropriation, treating it as having' been lawfully made, and not bringing an action for alleged trespass by virtue of an unlawful taking.
    Defendant's second point, was to the effect that because a road or street in East Stroudsburg, crossed Sambo creek, it gave the defendant borough the power to condemn the stream about two miles above said crossing, erect- a reservoir, and divert the water, without any right of complaint or action on the part of the plaintiff.
    The point denied was vicious. It assumed that the water was only used for domestic purposes, while the evidence established that thousands of gallons were taken daily by locomotives on the Delaware, Lackawanna and Western Railroad, and for purposes other than domestic uses. Besides, the proposition itself is without the contemplation of the law, relative to the rights of riparian ownership or to the rights of municipalities in streams.
    While a borough has the power to construct a reservoir and conduct water to its inhabitants, it has no right to furnish the water to persons outside the borough limits. For example, locomotives, etc., Haupt’s Appeal, 125 Pa. 211. In addition there was nothing in the evidence to show that the defendant borough could have taken water from the creek where the public road crossed the same.
    The third point involves the same law as that just previously mentioned, and needs no comment or authority to sustain the denial.
    Error was assigned as to the qualifications of witnesses testifying for the plaintiff, who alleged depreciation of his property by the said taking or appropriation of Sambo creek. In consideration of this alleged error attention is first called to the qualification of the witnesses' objected to, relative to the property alleged to have been damaged. All of them were men of large and varied experience in water powers and their values, not as theorists, but as actually operating and dealing in the same. The opinion of each of them was entitled to much credit upon the question relating to whether or not the property had been depreciated by appropriation of the stream aforesaid. They all knew the Stauffer property alleged to have been affected in 1889, previous thereto and down to the present.
    Isaac Stauffer had been engaged in the operation of water powers for forty years, had sold several such properties, had dealings in real estate, knew what some such properties were held at by the people who owned them; he had known the Stauffer property for thirty years; had been one of the joint owners of it, and a short time previous to 1889 had sold his interest in it to the plaintiff, George E. Stauffer, at a figure which he testified he considered low, it being a family matter, and if it had gone to an outsider, ho would have had to pay more for it, and that nothing had happened since 1889, except the taking of Sambo creek to affect its value, and judged it was worth as much now as then, because property had advanced in value.
    Gideon H. Miller, witness, operated a mill on Brodhead’s creek for a number of years and was familiar with the Stauffer property, Brodhead’s creek being the same stream to which the Sambo creek was a tributary; had crossed Sambo creek every day, lower down, for fifteen years; knew the market value of water powers and had heard what people sold them for and what others held them at.
    Phillip G. Henning, witness, owned water power and operated with it for many years ; had owned land in the borough of East Stroudsburg for fifteen or sixteen years, building lots close to Sambo creek; knew that portion of Sambo creek; had been on the Stauffer property at various times, very well acquainted with it; knew the buildings; knew sales of water power properties in the neighborhood; knew what Stauffer held his property at; could form a fair market value of the same ; had examined the dam and judged the head of water ten feet.
    Van C. Peters, witness, had known the Stauffer property fifteen or twenty years, its water power, and was himself largely engaged in the erection of a plant for the utilization of such power; knew the market value of real estate.
    Clearly so far as the property itself was concerned and its market value, they were competent, especially in the light of the testimony that it was practically in the same condition during all the years since 1889 as at the time of the taking in that year.
    It appeared, however, in their examination as to their qualifications that their knowledge of Sambo creek at the place where the water was impounded and taken by the defendant borough, was practically confined to an examination made a short time before the trial, with the purpose in view of estimating its flow, and arriving at the injury by the taking. In other words, for the purpose of estimating the depreciation in the market value of the property, by its being deprived of the water flowing in 'Sambo creek at the place of taking, and of course this involved the quantity of the same, as it would be led into Stauffer’s water wheels from the dam by means of a trunk, all of which the said witnesses knew about. Was this knowledge of the stream sufficient to qualify them to testify relative to the depreciation in market value by the appropriation or taking in 1889 ?
    In deciding this question it can be assumed as a fact to be gathered from the evidence and was considered by the witnesses that the Stauffer property was substantially the same in 1889 as at the time of the trial; that the witnesses knew the' market value of the property at that time and that the Sambo creek itself was substantially the same, or if anything smaller at the examination just before the trial than in 1889, which would be more favorable to the defendant borough than against it, in the estimation of the quantity of water flowing in the stream.
    Under this state of facts, were those persons, expert in water powers, capable of stating what would be the depreciation in the market value of plaintiff’s property, by the appropriation of the whole stream in 1889 ? The conditions being about the same, was not their testimony worthy of consideration by the jury; was it not really worth more than that of a non expert, who knew the property intimately in 1889, and who knew the stream at that time and might be called upon to testify^ to the depreciation or non depreciation. It took no feat of the imagination on the part of plaintiff’s witnesses to arrive at a conclusion, nor were they called upon to differentiate as to the two periods of time. As the court viewed it, it was simply asking for an opinion which the witnesses were capable of giving from knowledge obtained from experience and good judgment. The question of whether a witness in this class of cases is properly qualified, is often very perplexing, both to counsel and the court, and, in later years, it has largely become the practice to practically make every witness an expert, qualified by examination of the property, acquiring a knowledge of the market value of property, etc., in order that he may pass the ordeal and be permitted to give his opinion under oath. It does not always appear plain that there is any certain rule; each case must stand on its own bottom and be governed by the circumstances as they arise in its trial. It is the interpretation of this court, applied to this class of cases, that some knowledge qualifies, the extent of the same affecting the credibility and the weight of the testimony. A man experienced in water powers, making a careful examination of a stream for the purpose of arriving at its value for power purposes, does not simply consider it as he sees it before him, but he takes into consideration the country through which it flows, and how it is liable to be affected by droughts, whether it will get low or dry up in the summer, etc. With this knowledge derived from experience, applied to the case before him, why is he not competent to testify to a depreciation in 1889 as well as now? Is it any more difficult to estimate back to 1889 than to estimate into the future ? Besides, added to their own judgment was the testimony of experts as to the actual flow of the water about the time of the examination and which should be considered, the height of the stream in 1889, and upon which the calculation of the number of gallons of water taken daily could be arrived at and applied to the case.
    In line with this method, reference is directed to Lewis v. Springfield Water Company, 176 Fa. 287.
    If the court erred, it erred in holding, that comparison of conditions, and application from expert experience could be admitted as testimony, while upon the contary it should have held that there could only be submitted testimony founded upon memory of things existing sixteen years previous to the trial. In other words, calling upon recollection of conditions sixteen years ago and making a comparison of how that would affect values. To the mind of the court the qualification of witnesses called by plaintiff, justified the permitting of their opinions to go to the jury as to the question of depreciation, leaving the matter after all, to the jury to judge of the same, taking into consideration the credibility and weight of their testimony.
    Error was assigned in the court holding the appropriation by the defendant borough to have taken place in 1889. The evidence submitted showed the fact that the defendant borough in 1889 adopted a resolution, and erected an impounding reservoir, gave a contract for its erection, that the same was erected, pipes laid, water diverted and conducted to1 the borough. In addition it gave bonds to certain individuals for condemnation and appropriation of said stream, and at least one case was tried in court resulting in a verdict for the landowner.
    There could be only one taking, and that took place in 1889, ■Bowers v. Citizens’ Water Co., 162 Pa. 9, and the taking applied to all persons injured, whether directly or consequentially. The defendant borough entered upon no property of the plaintiff and his silence for a number of years does not affect the time of the appropriation or taking, nor fix the date at which the inquiry should be directed in estimating the injury alleged. The date when the property was affected was when the appropriation was made, namely, in 1889. This position is well settled in Graham v. Pittsburg, etc., Railroad Co., 145 Pa. 504, to wit: that in assessing damages for such appropriation they were to be computed as of the date of the filing of the bond, but the jury should compare its value as of the date of the lawful appropriation with the value at the same date as affected by the railroad.
    Suppose the plaintiff had proceeded in 1890. If injured, could he not have recovered but for one injury, namely, the taking of the whole stream: Bowers v. Citizens’ Water Company, 162 Pa. 9. Besides, the defendant itself fixed the time of the appropriation as 1889 and requested the court to charge the jury to that effect, and it is difficult to understand how counsel could expect the court to reconcile its exactly opposite views and reasons. It appears as if there was confusion in distinguishing between the date at which the damages should be assessed and the date to which the inquiry of the estimate of the damage should be directed.
    May 7, 1906 :
    The conditions of the property have been substantially the same from 1889 down to the present. The whole property has enhanced some in value from the fact of general increase in values, but not as affected by the stream. No witness was liable to fall into error because unable to distinguish between conditions of the different periods, for they were practically the same.
    Rule discharged.

      Errors assigned were various rulings on evidence and instructions.

      W. B. Eilenberger, with him Harvey Huffman, for appellant.

      F. B. Holmes, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the court below refusing a new trial.