text:
    Barnett v. Philadelphia Market Company, Appellant.

      Corporations — Consolidation and merger — Rights of dissatisfied stockholders — Ascertainment of value of stock — Equity—Act of May 29, 1901, P. L. 349.
    Where a corporation, such as a market company, has been consolidated and merged with another corporation, and a dissatisfied stockholder has not voted against the consolidation, his remedy to ascertain the value of his stock and to enforce payment thereof is by bill in equity and not by proceedings under the Act of May 29, 1901, P. L. 349.
    Even a stockholder who has voted against the consolidation is not confined to the remedy provided by the act of 1901. The protection given the stockholder in Lauman v. Lebanon Valley R. R. Co., 30 Pa. 42 is still to be found in chancery, assuring him actual payment for his stock, if he is compelled to part with it, instead of a judgment against the corporation for the value of it, to be collected “as other judgments are by law recoverable.”
    Argued March 25, 1907.
    Reargued April 2, 1907.
    Appeal, No. 377, January 3,1906, by defendants, from decree of C. P. No. 2, Phila. Co., March T., 1904, No. 4,595, on bill, in equity in case of Frank Barnett et al., trading as Wolf Brothers and Company, and Abraham Lehman, trading as N. Lehman and Brother, v. The Philadelphia Market Company et'al. and the Quaker City Cold Storage & Warehouse Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to ascertain value of stock of a corporation and to secure payment therefor. Before Wiltbank, J.
    The plaintiffs averred in their bill that Frank A. Barnett, on October, 19, 1903, became, and at the time of filing the bill, still was the owner of 100 shares of the capital stock of the Philadelphia Market Company, the equitable title to which, however, was in the other plaintiffs; that the said Philadelphia Market Company and the Quaker City Cold Storage & Warehouse Company were both corporations duly incorporated, under the laws of the state of Pennsylvania, and had en-. tered into an agreement of-merger, under date of February 16, 1904, which was filed in the office of the secretary of the commonwealth of Pennsylvania and by reason thereof, there was duly incorporated on March 15, 1904, the Pennsylvania Cold Storage. & Market Company for the purpose of succeeding to all the property rights, franchises and privileges by law theretofore vested in said Philadelphia Market Company and the Quaker City Cold Storage & Warehouse Company respectively ; that the action of the stockholders of the Philadelphia Market Company taken to produce this result was at a meeting which was not attended by any of the complainants; that the said Pennsylvania Cold Storage & Market Company under date of May 11, 1904, notified the complainants of the vesting of said property in it, and requiring the complainants to return the said certificate of stock standing in the name of the said Frank A. Barnett, for which would be issued a certificate of stock in the said Pennsylvania Cold Storage & Market Company; that none of the complainants ever consented to the said merger and consolidation, and demanded that the officers of the Philadelphia Market Company should abandon what they denominated as an unlawful scheme.
    The bill prayed for an injunction restraining the Philadelphia Market Company from transferring to the Pennsylvania Cold Storage & Market Company its said property rights, privileges and franchises; that all of the said proceedings should be declared illegal and void, and that the Pennsylvania Cold Storage & Market Company be ordered and decreed to return to the Philadelphia Market Company all of said property that it should be decreed that the Philadelphia Market Company and the Pennsylvania Cold Storage & Market Company, or either of them pay to the complainants thejfull market value $)f their said stock in the said Philadelphia Market Company.
    The answer set forth that-the meeting of the stockholders of the Philadelphia Market Company was duly held in accordance with all provisions of law, of which meeting notice was given to the said Frank A. Barnett, who did not attend the said meeting, nor was he represented thereat; that the agreement referred to in the bill was duly submitted to the stockholders, and a resolution duly adopted approving the same by an unanimous affirmative vote of more than a majority of the stock of said Philadelphia Market Company ; that the said merger had taken place under the provisions of the Act of assembly of Pennsylvania approved May 29, 1901, P. L. 319; that the said Frank A. Barnett had been requested to surrender his certificate for 100 shares of the stock of the Philadelphia Market Company of the par value of $50.00, and receive in exchange therefor a certificate of the Pennsylvania Cold Storage & Market Company for 100 shares of the par value of $50.00; that all of the stockholders had received similar requests, and that the said' Frank A. Barnett was entitled to receive proportionately exactly as much stock as any other stockholder in said Philadelphia Market Company; that the said plaintiffs never opposed the said merger, but, on the contrary, remained entirely silent until the bill in this case was filed, and that no demand that the said plan of merger be abandoned was ever made prior to the time of filing the bill by the plaintiffs; that the said merger was neither a scheme nor unlawful, but, on the contrary, was to the interest and advantage of all of the stockholders of the Philadelphia Market Company, and that the stock of the Philadelphia Market Company had been made of greater value than it was before the said merger took place.
    The case was heard on bill and answer on the general question, and referred to Willis E. Barker, Esq., to ascertain the market value of the stock.
    Exceptions to the report of the referee were dismissed by the court.

      Error assigned among others was in decreeing the payment of the par value of the shares of the Philadelphia Market Company. ¡

      John Gr. Johnson, with him Frank R. Shattuck, for appellant.
    The act of May 29, 1901, afforded to dissatisfied stockholders a remedy, which it was their duty to pursue. They are entitled to no other relief.
    The court erred in sustaining the report of the referee fixing the value of the shares at par.

      Morris Wolf, with him Horace Stern, for appellees.
    A material alteration of the contract between the corporators is an injustice which can be enjoined unless made by unanimous consent: Manheim, etc., Turnpike Co. v. Arndt, 31 Pa. 317; Caley v. Philadelphia, etc., R. R. Co., 80 Pa. 363; Knoxville v. Knoxville, etc., R. R. Co., 22 Fed. Repr. 758; Zabriskie v. Hackensack, etc., R. R. Co., 18 N. J. Eq. 178; Consumers’ Gas Trust Co. v. Quinby, 137 Fed. Repr. 882.
    There is no alteration of the contract between the corpora-tors more material than the authority to consolidate with other corporations: Lauman v. Lebanon Valley R. R. Co., 30 Pa. 42; Temperance Mut. Ben. Assn. v. Friendly Society, 187 Pa. 38; Mowrey v. R. R. Co., 4 Biss. 78; Atlantic, etc., R. R. Co. v. Georgia, 98 U. S. 359; Appeal of Hose Companies, 6 Leg. Gaz. 79; Commonwealth v. P. & W. R. R. Co., 41 Legal Int. 448; Wait on Insolvent Corporations, sec. 423; McCray v. Junction R. R. Co., 9 Ind. 358; Clearwater v. Meredith, 1 Wall. 25; Owensborough Bank v. Barrett, 13 S. W. Repr. 337; Mayfield v. Alton Ry., etc., Co., 198 Ill. 528 (65 N. E. Repr. 100)); Rabe v. Dunlap, 51 N. J. Eq. 40 (25 Atl. Repr. 959).
    The decision in Lauman v. Railroad Co., 30 Pa. 42, is, that in the case of a consolidation, as in the case of a dissolution, stockholders may, at their option, demand the cash value of their interest, and until this be paid or security given for its payment, the court will enjoin a consolidation, even though authorized by act of legislature: Clearwater v. Meredith, 1 Wall. 25; Mowrey v. R. R. Co., 4 Biss. 78; Jones v. Edison Electric Co., 144 Fed. Repr. 765; 2 Cook on Corporations, sec. 500.
    Whether the effect of the consolidation would be to increase the value of the complainants’ stock, as the defendant alleges, or to decrease it, as the complainants allege, is not material from a legal standpoint: Mowrey v. Indianapolis, etc., Ry., 4 Biss. 78; Mills v. Cent. R. R. Co., 41 N. J. Eq. 1 (2 Atl. Repr. 453); Morris v. Elyton Land Co., 125 Ala. 263 (28 So. Repr. 513); Robinson v. Holbrook, 148 Fed. Repr. 107.
    There was no manifest error in the referee’s finding that the complainants’ stock was worth par: Price’s App. 54 Pa. 472; Plankinton’s Est., 212 Pa. 235; De La Vergne Refrigerating Machine Co. v. Kolischer, 214 Pa. 400.

      June 25, 1907:
   Opinion et

Mr. Justice Brown,

The prayers of this bill are in the alternative. The complainants ask that the consolidation or merger of the Philadelphia Market Company with the Quaker City Cold Storage and Warehouse Company and the resulting incorporation of the two as the Pennsylvania Cold Storage and Market Company, be declared illegal and void, or that they be paid, by the defendants, or either of them, the full market value of their stock held and owned by them in the Philadephia Market Company. The first prayer was not granted, but a decree was made for the relief asked for in the second. A referee was appointed to ascertain the market value of the stock. He reported it to be $50.00 per share, which is its par value. The consolidation of the companies has not been interfered with, and the only questions to be determined on this appeal are whether errors were committed in the decree directing that the defendants, or either of them, pay to the complainants the full market value of their stock and in confirming the report of the referee fixing it at $50.00 per share. By section 5 of the Act of May 29, 1901, P. L. 319, a remedy is given to a stockholder of a corporation becoming a party to an agreement of merger or consolidation for the ascertainment of the damages he may sustain by the merger or consolidation and for the collection of the same, and one of the contentions of the appellants is that the appellees were bound to pursue the remedy provided by that section and were entitled to no other relief. The court below refused to concur in this, but gave no reason for its refusal to do so.

The remedy provided by the act of 1901 can be invoked only by those who are entitled to it, and they are stockholders who are not only dissatisfied with or object to a consolidation, but who, at a stockholders’ meeting, “ voted against the same.” These appellees were not present at the stockholders’ meeting either in person or by proxy, and, not having voted against the consolidation, the court below may have been of opinion that they were not within the terms of the 5th section of the act of 1901. There is no provision in that section for a stockholder who is simply dissatisfied with a proposed consolidation, as there is in the Act of March 21, 1865, P. L. 19, authorizing the consolidation of railroad companies. ^ But, even if the appellees might have pursued the remedy provided by the 5th section of the act of 1901, they were not bound to do so. No new right is conferred upon stockholders by the act of 1901, and no one theretofore enjoyed by them has been impaired by it. It authorizes consolidation, but does not take away the right of a stockholder to refuse to surrender his stock for that in a new corporation or to take anything less for it than its actual value, if his company is to be practically dissolved. This is all the decree secures to the appellees, and to it they were entitled : Lauman v. Lebanon Valley R. R. Co., 30 Pa. 42. Á dissatisfied stockholder voting against consolidation effected under the act of 1901 “ may ” have his damages and the value of his stock ascertained and payment of the same secured in the mode pointed out in that act, but this remedy is not his only one. He may adopt it if he prefers it to that which these appellees adopted; but he is not required to do so. The protection given the stockholder in Lauman v. Lebanon Valley R. R. Co. is still to be found in chancery, assuring him actual payment for his stock, if he is compelled to part with it, instead of a judgment against the corporation for the value of it, to be collected “ as other judgments are by law recoverable.”

We have not been persuaded that any error was committed by the referee in fixing the par value of the stock -a$ its market value, and his 'report, confirmed by the court below, will not be disturbed. The value was ascertained in accordance with our own cases and the authorities generally directing how the value of stock of this kind, not listed and having no quoted price, shall be determined.

Appeal dismissed and decree affirmed at appellants’ costs.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Meyers v. Catawissa Coal Company, Appellant.

      Vendor and vendee — Satisfactory title — Time limit — Contract—Affidavit of defense.

    Where an agreement for the sale of land provides expressly that the title to the land shall be made clear and satisfactory to the purchaser within a period of time named, a failure on the part of the seller to prove the title good to the satisfaction of the purchaser within the time named, is good ground for the recission of the contract by the latter.
    Argued March 28, 1907.
    Reargued May 6, 1907.
    Appeal, No. 123, Jan. T., 1907, by defendant, from order of C. P. No. 4, Phila. Co., June T., 1906, No. 3,527, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Henry Meyers v. Catawissa Coal Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover back a portion of the purchase price for land paid under an agreement of sale.
    The opinion of the Supreme Court states the case.
    The court in an opinion by Audenried, J., made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      C. LaRue Munson, of Candor & Munson, for appellant.
    — The affidavit of defense was sufficient; Nicol v. Carr, 35 Pa. 381; Swain v. Fidelity Ins., etc., Co., 54 Pa. 455; Herman v. Somers, 158 Pa. 424; McSherry v. Askew, 1 Yeates, 79; Murray v. Ellis, 112 Pa. 485; Beardslee v. Underhill, 37 N. J. L. 309; Folliard v. Wallace, 2 Johns. (N. Y.) 395; Vought v. Williams, 120 N. Y. 253 (24 N. E. Repr. 195); Lord v. Stevens, 1 Young & Coll. 222; Singerly v. Thayer, 108 Pa. 291; Seeley v. Welles, 120 Pa. 69; Howard v. Smedley, 140 Pa. 81; Delahunty Dyeing Machine Co. v. Penna. Knitting Mills, 19 Pa. Superior Ct. 501.

      C. Berkeley Taylor, with him Franklin E. Barr, for appellee.
    Although the exact point has not been determined here, a line of cases lays down the rule that in contracts to deliver articles to be paid for if satisfactory to the purchaser, he cannot be compelled to pay for them if not satisfied with them: Singerly v. Thayer, 108 Pa. 291; Seeley v. Welles, 120 Pa. 69; Howard v. Smedley, 140 Pa. 81; Delahunty Dyeing Machine Co. v. Knitting Mills, 19 Pa. Superior Ct. 501; Payne v. Roberts, 214 Pa. 568; Duplex Safety Boiler Co. v. Garden, 101 N. Y. 387 (4 N. E. Repr. 749); Nolan v. Whitney, 88 N. Y. 648; Hummel v. Stern, 36 N. Y. Supp. 443.
    June 25, 1907:
   Opinion by

Mr. Justice Potter,

This is an appeal from a judgment entered for want of a sufficient affidavit of defense. The defendant company agreed in writing to sell to Henry Meyers, the plaintiff, its entire capital stock, stipulating that it owned in fee a certain tract of anthracite coal in Columbia county, which was to be free of debt, liens, taxes and incumbrances, with the exception of a mortgage for $50,000. Upon the execution of the contract, the plaintiff paid down the sum of $5,000, with the explicit agreement that if within thirty days the titles to the property ivere not ££ clear and satisfactory to said Meyers ” the money was to be returned. If the titles proved to be “ clear and satisfactory to said Meyers ” a second installment of the purchase money was to be paid, not later than thirty days from the date of the agreement.

The plaintiff brought this action to recover the said sum of $5,000, paid by him on account of the purchase money, alleging that the titles to the tract of land described in the agreement were not made clear and satisfactory to him within, the period of thirty days named therein. The defendant averred in an affidavit of defense, full compliance on its part with the agreement, and averred further that with the exception of the mortgage as contemplated, the title is clear and satisfactory, and is marketable. This affidavit was adjudged insufficient by the court below, for two reasons. First, because it contained no averment as to the state of the title within the period of thirty days following the agreement, within which the title was to be made clear and satisfactory to the plaintiff. Second, because it avers merely that the title is clear and satisfactory, and marketable; and fails to aver that it is satisfactory to the plaintiff, as, under the agreement, it was to be.

W e all agree that the first reason is good, and is in itself sufficient to sustain the judgment. The contract is clear and specific, that the titles were to be proven good to the satisfaction of the plaintiff within thirty days, and that he was to make a large additional cash payment within that time. This involved not only an examination of the titles, but a financial arrangement, and it may very well have been that the time limit fixed was important, in view of the money which was to be provided by the plaintiff, and paid over. At any rate, the parties did unquestionably agree upon a definite period within which the titles were to be shown as clear and satisfactory to Meyers, and the affidavit of defense does not aver compliance with the contract in this respect within the limit fixed.

The assignments of error are overruled, and the judgment is affirmed.


author: Mr. Chief Justice Mitchell,

text:
    Austin v. Converse, Appellant.

      Nuisance — Operation of manufacturing plant — Noise, vibration and smoke — Manufacturing neighborhood — Injunction—Equity.
    While noise from a factory is an inconvenience and discomfort to adjoining property holders yet where it is of a class incident to the neighborhood when the complainant went into it, and not materially greater, there is no cause for injunction.
    On a bill in equity against a locomotive works complaining of a nuisance, noise, vibration, din, and smoke, it appeared that for twenty years prior to the filing of the bill, the works in question had' been operated day and night, and that they were situated in a manufacturing neighborhood. About seven years prior to the filing of the bill, the complainant leased a residence directly across a street from the works, and used the same as a boarding house. Four years prior to the filing of the bill, the defendant erected a new building opposite a part of complainant’s premises, and in it established a plant for riveting by pneumatic tools. This work was conducted day and night. Plaintiff continued in the occupation of the residence until the time of the filing of the bill and thereafter, without any material reduction in rent. In the year prior to the filing of the bill, complainant’s sister purchased the house, and was the owner at the time of the trial. Held, that the evidence was not sufficient to justify the court in granting an injunction.
    Argued March 29, 1907.
    Appeal, No. 100, Jan. T., 1907, by defendant, from decree of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 3,888, on bill in equity in case of Vene R. Austin v. John H. Converse et al., trading as Burnham, Williams & Co. and Baldwin Locomotive Works.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction.
    Brégy, J., filed the following adjudication:
    This bill is filed by the lessee of a dwelling at Eighteenth and Buttonwood streets against the Baldwin Locomotive Works, complaining that she is annoyed by the noises, smoke, dirt and soot coming from the defendants’ works, especially from a new building erected since she became the tenant of premises she now occupies.
    FINDINGS OF FACT.
    I find that:
    1. The complainant, Vene R. Austin, is the lessee and occupant of the premises northeast corner of Eighteenth and Buttonwood streets, in the city of Philadelphia, and that since November 15,1899, she has there conducted a boardinghouse. On November 15, 1899, she became the lessee at a rental of $45.0ü a month for the term of one year, with no right for a longer period. On January 30, 1902, a new lease, in -writing, was made to her for the term of one year, from February 15, 1905,-at a rental of $45.00 per month-for certain months and $37.00 per month for certain other months. On August 15, 1902, a new lease in writing was made to her for the term of one year, from February 15, 1902, at a rental of $40.00 per month. She remained in possession thereafter, as a tenant from year to year, without reduction of rent.
    2. In August, 1905, the sister of the plaintiff purchased the property, which was subject to a mortgage of $4,500, from the then owner, the estate of Yanuxem, subject to said mortgage, for $500. The purchase money was paid in installments.
    3. At the time the complainant rented the house, the neighborhood was a manufacturing one. This condition of affairs has existed for many years, and still continues. The residence at the time the plaintiff first rented it, was surrounded by foundries, iron and steel works, and factories of different kinds.
    4. In 1902, the defendant erected a new building at Eighteenth and Buttonwood streets, opposite to a part of the complainant’s premises. This building is quite large, and in it the work of riveting by pneumatic tools is carried on. This work is done all day and all night, except on Sundays.
    5. The noise of this work is very loud, and is distinctly heard in the plaintiff’s house, and is detrimental to her comfort and disturbs her sleep and disturbs the comfort and interferes with the sleep of her boarders, notwithstanding the fact that the defendants have placed the machinery for this noisy part of their work at the most remote spot from plaintiff’s house that it is possible to place it: to wit: on the side facing the Reading railroad subway.
    6. The operation of the defendants’ works causes smoke and dirt, which is uncomfortable and annoying to the occupant of the plaintiff’s house.
    7. In the operation of their machine shops the defendants maintain and operate about 100 riveting machines and other heavy machinery.
    These are all the facts that I feel it necessary to find to properly determine the matter, but in answer to requests from plaintiff and defendant I have found others.
    CONCLUSIONS ON LAW.
    Briefly stated, the facts found show this condition of affairs:
    The plaintiff rented a house and began the business of keeping boarders in 1899, in a neighborhood that was practically given up to large manufacturing establishments.
    In 1902 the defendants built a new building in-addition to their others, replacing the business of some other manufacturing establishment.
    The plaintiff now -complains of the soot, dirt, smoke and noise coming from these works of the defendants’ works, and asks for an injunction.
    The defendants’ works are run day and night, except on Sundays. I find the plaintiff’s and defendants’rights-under the law are these:
    1. That no necessity having been shown for the running of these riveting machines during the night, the plaintiff is entitled to the rest and sleep usually incident to that portion of the day.
    An injunction will therefore issue, restraining the defendants from operating the pneumatic riveting machines between the hours of 8 p. m. and 1 a. m.
    2. That as the plaintiff moved into a neighborhood given up to manufacturing, she cannot now insist that the noises and dirt incident thereto must be removed. Her only right is to have the works so run that the usual hours of rest and sleep are not intruded upon.
    3. The defendants should pay the costs.
    On exception, Brégy, J., filed the following opinion:
    On the argument, it was urged that the trial judge had made an error in finding that the pneumatic riveting machines were located in the new building (erected just before the bringing of this suit) across the street from the residence of the complainant.
    We do not find any exception that raises that question, but, in fairness to the defendants, it should be said- that the machines alluded to, and that are enjoined by my conclusions, are not located in that particular building, and never were, but in the rearrangement of their plant, were put in a building facing the Reading railroad subway. As said in the findings of fact, as far removed as possible from the complainant’s house.
    The fact remains, however, that the running of these machines all night is annoying, disturbing of sleep and prejudicial to the comfort that all are entitled to, if not to health.
    We do not think that the fact that the bill was filed some time after the nuisance began, deprives the complainant of her right to redress.
    The defendants were not induced to do anything or incur any expense by the inaction of the complainant. Patience and laches are different things. We do not know of any case that goes so far as to say that the endurance of all-night work in an enormous machine shop for a few years, perhaps in the hope of its eventually stopping, requires one to endure it forever.
    The defendants maintain a continuing nuisance of a peculiar kind, and cannot secure a right to go on with it, because it was not immediately enjoined. We do not interfere with the usual and proper use of the works, but only with the improper one. The right “ to murder sleep ” cannot be acquired by “ lapse of time.”
    The exceptions are dismissed.

      Error assigned was decree of the court awarding an injunction.

      John G. Johnson, for appellants.
    No injunction should have been granted because of the laches of the appellee in applying for relief: Mayer’s Appeal, 73 Pa. 164; Penna. R. R. Co. v. Mullin, 23 W. N. C. 503; Dunmore Borough’s Appeal, 1 Monaghan, 567; Miles, Corson Co. v. Young, 29 W. N. C. 256; Heilman v. Lebanon, etc., St. Ry. Co., 175 Pa. 188; Penna. R. R. Co. v. Glenwood, etc., Electric St. Ry. Co., 184 Pa. 227; Becker v. Lebanon, etc., St. Ry. Co., 188 Pa. 484.

      Thomas Diehl, with him Jerome Carty, for appellee.
    — The right to maintain a nuisance cannot be acquired by prescription: Mills v. Hall, 9 Wend. (N. Y.) 315; Dyer v. Dupui, 5 Wharton, 584; Cooper v. Smith, 9 S. & R. 26; Howell v. McCoy, 3 Rawle, 256; Penna. Lead Co.’s App., 96 Pa. 116; Penna. Schuylkill Valley R. R. Co. v. Reading Paper Mills, 149 Pa. 18; Strickler v. Todd, 10 S. & R. 63; Jones v. Crow, 32 Pa. 398; Hoy v. Sterrett, 2 Watts, 327; McCallum v. Water Co., 54 Pa. 40; Turnpike Co. v. Piper, 77 Pa. 432; Irving v. Media Boro., 10 Pa. Superior Ct. 132; s. c. 194 Pa. 648.
    That a business is lawful will not justify a continuance of it should a nuisance result: Dennis v. Eckhardt, 3 Grant, 390.
    The courts have exercised their restaining power in very numerous cases, of which we cite a few: Farrell v. Foster, 34 Legal Int. 88. Operating a trip hammer was enjoined between 7 p. m. and 6 a. m. Wallace v. Auer, 10 Phila. 356. A gold beater was enjoined. Rodenhausen v. Craven, 141 Pa. 546. The beating of carpets was enjoined. Schandein v. Bach, 11 W. N. C. 202. The business of a hog butcher was restrained. Ladies’ Decorative Art Club, 22 W. N. C. 75. The operation of a noisy school of art was restrained. Burke v. Myers, 10 W. N. C. 481. A factory which caused noises and reverberation was enjoined entirely on Sundays and from 8 p. m. to 6 p. m. on other days. Dillon v. States, 11 W. N. C. 18. Meat chopping restrained between 8 p. m. and 8 a. m, St. Mark’s Church Case, 34 Legal Int. 76 S. C. 222. The ringing of church bells at unseasonable hours and for an unreasonable period of time was enjoined. Briggs v. Vottler, 4 W. N. C. 272. A ten-pin alley was enjoined from operating either by day or night.
    There have been a number of recent cases decided by this court: Robb v. Carnegie, 145 Pa. 324; Walters v. McElroy, 151 Pa. 549; Evans v. Reading Chemical Fertilizing Co., 160 Pa. 209; Sullivan v. Steel Co., 208 Pa. 540.
    June 25, 1907:
   Opinion by

Mr. Chief Justice Mitchell,

The complainant’s bill was based on averments that the extent and mode of operation of respondents’ works had been so changed since her moving into the neighborhood as to produce vibration, noise, soot and smoke that made her residence untenantable. The evidence totally failed to establish any branch of the alleged cause of action. The learned judge below negatived all the complaints except that relating to the noise created by certain riveting machines. He did not find that this had been recently increased, but did find that it tended to disturb sleep. He therefore enjoined the running of said machines between 8 p. m. and 7 a. m. Whether this conelusion was necessitated by the evidence must depend on a general review of the established facts of the case. From the findings of fact affirmed by the judge it appeared that the complainant leased the house in 1899. The neighborhood was then and had been for upwards of twenty years a manufacturing one, the residence at that time being surrounded by foundries, iron and steelworks and factories of different kinds. “ In 1899 and for many years previously, the defendants operated in a way producing more noise and smoke than were produced when the bill was filed, their works on Buttonwood Street to a point within seventy-two feet of Eighteenth Street. No additional noise or dirt or smoke ivere produced by the operations which were conducted in the new building. On the contrary, all noises, smoke, etc., ivhich could affect the plaintiff, were diminished considerably since 1899.” In 1892 “ the defendant erected a new building at Eighteenth and Buttonwood Streets, opposite to a part of the complainant’s premises. This building is quite large, and in it the work of riveting by pneumatic tools is carried on. This work is done all day and all night, except on Sundays. The noise of this work is very loud, and is distinctly heard in the plaintiff’s house, and is detrimental to her comfort and disturbs her sleep and disturbs the comfort and interferes with the sleep of her boarders, notwithstanding the fact that the defendants have placed the machinery for this noisy part of their work at the most remote spot from the plaintiff’s house that it is possible to place it; to wit: on the side facing the Reading Railroad Subway.”

The complainant went into the house in 1899 on a lease for one year, and notwithstanding its inconveniences and discomforts she renewed her lease twice for a year at a time, and has since remained as tenant from year to year without any reduction in rent. It is an additional circumstance not without weight that in 1905, six years after complainant’s occupation began, her sister purchased the house and has continued to be the owner.

As already said the learned judge found the facts against all the complaints except that as to the disturbance of sleep by the noise of the pneumatic riveting machines. These were put in their present location in 1902 and this bill was not filed until 1906. While this delay as the learned judge found, would not estop her, yet it is very strongly persuasive that the complaint is exaggerated. In fact, gross exaggeration is manifest all through the case. It is expressly found as a fact in regard to the general complaint of nuisance from the operation of defendants’ works and its increase since complainant’s occupation of the house. Although one of the judge’s conclusions of law is that no necessity has been shown for the running of the riveting machines at night, yet it is found as a fact that “ the works of the defendants have been operated by night in the way they are now operated, for nearly twenty years.” A consideration of the whole testimony, in view especially of this pervading exaggeration, compels us to differ with the learned judge below, so far as to hold that while the noise is no doubt an inconvenience and discomfort yet it is of the class incident to the neighborhood when the complainant voluntarily went into and remained in it, and is not sufficiently greater in degree to entitle her to interfere with it.

The decree is reversed, the injunction dissolved and the bill directed to be dismissed.


author: Per Curiam,

text:
    Thirteenth & Fifteenth Streets Passenger Railway Company, Appellant, v. Broad Street Rapid Transit Street Railway Company.

      Equity — Jurisdiction—Quo warranto — Private relator.

    A bill in equity in the nature of a quo warranto cannot be maintained by a private individual to test a street railway company’s right to use a public street in a city.
    Argued April 1, 1907.
    Appeal, No. 368, Jan. T., 1904, by plaintiff,from decree of C. P. No 2, Phila. Co., March T., 1903, No. 4,519, dismissing bill in equity in case of Thirteenth & Fifteenth Streets Passenger Railway Company v. Broad Street Rapid Transit Street Railway Company and the Philadelphia Rapid Transit Company.
    Before Mitohell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Bill in equity for an injunction. Before Sulzberger, P. J. See Commonwealth, ex rel. v. Broad Street Rapid Transit Street Railway Company, next succeeding case.

      Error assigned was decree dismissing the bill.
    N. Du Bois Miller, with him H. La Barre Jayne and J. Rodman Paul, for appellant.

      Ellis Ames Ballard and John G. Johnson, with them E. O. Michener, for appellee.
    June 25, 1907:
   Per Curiam,

This is a bill in equity to enjoin the defendant company from proceeding under its charter to lay railway tracks on Broad street in the city of Philadelphia. The basis of the relief sought was the invalidity of the franchise purported to be granted. The learned judge below rightly held that this was in effect a quo warranto to challenge the validity of the charter itself and could not be sustained by a private relator. He therefore dismissed the bill. A quo warranto was then issued at the relation of the attorney general, and the other questions argued by the appellant in this ease so far as they are relevant will be considered in disposing of that.

Decree affirmed.


text:
    Commonwealth ex rel. v. Broad Street Rapid Transit Street Railway Company, Appellant.

      Street railways — Use of streets — Broad street in Philadelphia — Acts of March 23, 1866, P. L. 299 — March 27, 1873, P. L. 435 and June 7, 1901, P. L. 514 — Statutes—Repeal of statutes.

    The Act of March 23, 1866, P. L. 299, prohibiting the laying of any railroad or railway tracks on Broad street in the city of Philadelphia, was repealed by the Act of June 7, 1901, P. L. 514.
    The Act of March 27, 1873, P. L. 435, which provided that in consideration of the surrender by the Thirteenth and Fifteenth Streets Railway Company of its claims on Broad street, no franchise should be granted thereafter to any street railway company to lay tracks on Broad street, or upon Thirteenth or Fifteenth streets, was repealed by the Act of June 7, 1901, P. L. 514. The legislature could not by the act of 1873, grant away the state’s rights of eminent domain so as to bind future legislatures.
    When the Act of June 7, 1901, P. L. 514, opened Broad street to occupation by “any railway corporation chartered under this act, or by any company which had abandoned or discontinued the use thereof,” the Thirteenth and Fifteenth Street Railway Company had no superior right to the street, and the privilege of using it was open to all on equal terms, and prior action secured prior right.

      Constitutional law — Title of statute — Street railways — Act of June 7, 1901, P. L. 514.
    The Act of June 7, 1901, P. L. 514, amending prior acts relating to street railway companies is sufficiently comprehensive in its title to cover the provisions in the act by which the Act of March 23, 1866, P. L. 299, prohibiting the laying of railway tracks on Broad street in Philadelphia, is repealed.
    The title of an act need not be, and ought not to be, a complete index of its contents.
    Argued April 1, 1907.
    Appeal, No. 19, Jan. T., 1907, by defendant, from judgment of C. P. No. 1, Phila, Co., March T., 1905, No. 1,035, on verdict for plaintiff in case of Commonwealth ex rel. Hampton L. Carson, Attorney General, v. Broad Street Rapid Transit Street Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Quo warranto to determine the right of the defendant to lay tracks on Broad street in the city of Philadelphia.
    From the record it appeared that the defendant company' was incorporated immediately after the passage of the Act of June 7, 1901, P. L. 514, for the purpose of constructing a surface railway on Broad street in the city of Philadelphia. Its right to construct the road was immediately challenged by a bill in equity filed by the Thirteenth and Fifteenth Street Passenger Railway Company which claimed that under the Acts of March 23, 1866, P. L. 299, and March 27, 1873, P. L. 435, it had a contract with the commonwealth which prohibited the occupation of Broad street by any other company. The bill was dismissed, and an appeal was taken to the Supreme Court. Subsequently the attorney general filed a suggestion for quo warranto, and the case came on to be heard before Brégy, J.
    The court entered a judgment of ouster.

      Error assigned was in entering judgment of ouster.

      Ellis Ames Ballard and John G. Johnson, with them E. O. Michener, for appellant.
    This case is ruled by In re Opening of Twenty-second Street, 102 Pa. 108. The act of 1873 does not constitute a contract which cannot be broken or cannot be taken: Cooley on Constitutional Limitation, 339; In re Opening of Twenty-second Street, 102 Pa. 108; Metropolitan City Ry. Co. v. Chicago West Division Ry. Co., 87 Ill. 317.

      M. Hampton Todd, attorney general, with him Biddle & Ward, for appellees.
    The Act of June 7, 1901, P. L. 514, does not repeal the Act of March 23, 1866, P. L. 299, as amended by the Act of March 31, 1868, P. L. 535, because if it were intended to do so, it would be unconstitutional, since such a purpose is not clearly expressed in the title: Com. ex rel. v. DeCamp, 177 Pa. 112; Uhler v. Moses, 200 Pa. 498; Union Pass. Ry. Co.’s App., 81* Pa. 91; Ruth’s App., 10 W. N. C. 498; In re Road in Phœnixville Borough, 109 Pa. 44; Quinn v. Cumberland Co., 162 Pa. 55; Stegmaier v. Jones, 203 Pa. 47; Dailey v. Potter County, 203 Pa. 593; House of Refuge v. Luzerne County, 215 Pa. 429.
    June 25, 1907:
   Opinion by

Mr. Chief Justice Mitchell,

The Act of March 23, 1866, P. L. 299, is entitled “An Act supplementary to an act to incorporate the city of Philadelphia, authorizing the improvement of Broad Street in said City,” and after authorizing, empowering and requiring the city of Philadelphia to occupy and appropriate Broad street for its entire length as a public drive, provides (sec. 4) that upon the improvement of the said street, and in consideration of the payment of the cost thereof, by the owners of property abutting thereon, “ no person or persons or corporation of any kind, nor the City of Philadelphia, shall at any time hereafter be authorized or empowered to locate, lay, construct or maintain any railroad, or railway tracks or other obstructions prejudicial to the uses and purposes aforesaid, along or upon said street or any portion thereof. ”

The question in the present case is whether this provision is repealed by the Act of June 7, 1901, P. L. 514. It is conceded by the learned attorney general that it is a question of legislative intention, not of legislative power.

By section 5 of the act of 1901, section 4 of the act of 1889, as amended by the act of 1895 is amended so as to authorize any company incorporated under the act of 1889 to abandon with the consent of the local authorities, any portion of its road, and then to provide that,

(a) “All streets, highways and bridges, or parts thereof, the use and occupation of which is thus abandoned, or which shall be deemed abandoned as hereafter set forth,” and
(b) “ Any other street, highway, or bridge, or part or parts thereof, the use and occupation of which has heretofore been abandoned or discontinued, ” or
(c) “ Which is only in temporary use, ” or
(d) “ Which is not occupied by any railroad because of the prohibition contained in any Act of Assembly or any ordinance of councils, ” or
(e) “ Because of any contract or agreement by and between any railway and the Commonwealth of Pennsylvania,” or
(f) (Any agreement between) “ any railway and the local authorities of any city, borough or township, ” or
(g) (Any agreement between) “ the Commonwealth and any of the citizens thereof, ” or
(h) “ Because of any ordinance of the councils of any city, borough or township, ” may “ with the consent of the local authorities of such city, borough or township, but not otherwise, be occupied and used by any railway company chartered under this Act or by the company which has abandoned or discontinued the use thereof.”

The general scope and intent of this section, heavily beclouded as it is by superfluous verbiage, seem to be to throw open to occupation by new corporations the use of streets not already actually occupied, or covered by valid charter rights of occupation by prior corporations, and to do this by the removal of all impediments in the way of the new corporations, except those arising from the rights of prior companies protected by the settled policy of the commonwealth not to burden streets with more than one line of railroad. Every other kind of restriction or prohibition by which any street was previously barred or supposed to be barred from occupation is apparently designated and removed by the eight specified classes thrown open by the act. And clauses (d) and (e) are so exactly applicable to the prohibition of the act of 1866' and to the act of 1873 (which will be discussed further on) and so manifestly not directed at any ordinary or frequent state of affairs, that it is impossible to suppose that the restrictions of these acts were not in contemplation of tho legislature and intended to be included within the provisions of the act.

The learned jndge below gave great weight, and rightly so, to the presumption against repeals by implication, and to repeals of a local or special act by a later act on a general subject. But the presumption is not universally controlling. It is a question of legislative intent. If the act of 1901 had provided that any corporation chartered under it should be authorized with the consent of the municipality, etc., to lay its tracks on any street not actually occupied or authorized to be occupied by a prior corporation, any statute, general or special, ordinance, contract with the commonwealth, or with any municipality or with any other corporation, to the contrary notwithstanding, there could be little question that the present case would come within it. But in effect this is just what the act does, certainly as to the cases coming within any one of the eight specifically enumerated classes. The intent to authorize the occupation of Broad street notwithstanding the act of 1866 is too plain to be disregarded.

The next question is whether the statute is constitutional. Objection is made that if so understood the subject is not expressed in the title, inasmuch as the act of 1866 is a supplement to the act incorporating the city of Philadelphia, and the title to the act of 1901 gives no intimation of any purpose to affect the city’s charter or privileges. But it is not indispensable that it should do so. While a later act entitled as an amendment or supplement gives notice without further specification that it may contain anything germane to its principal yet the converse does not follow that it must be so called in order to affect or change or repeal a prior act. The best informed, most careful and far seeing legislator cannot always foresee every point in the old law which a new one may affect. Hence the usual legislative phrase is that all laws or parts of laws inconsistent with the new enactment are repealed leaving the inconsistencies to be developed by experience and adjusted by the courts. In Sugar Notch Borough, 192 Pa. 349, it was said, “ The restrictions of the constitution upon legislation apply to direct legislation, not to the incidental operation of statutes constitutional in themselves upon other subjects than those with which they directly deal.” And to the same effect, Stull v. Reber, 215 Pa. 156.

The subject of the act of 1901 compendiously stated is the right of street railway companies to occupy streets, and it is not at all certain that if that had been the full title it would not have been sufficient to cover everything in the act, though of course the intent to repeal the local act of 1866 would not have been so plain. But the legislature dealing with that general subject, and giving notice of its intention to do so by calling the act a supplement to the general act of 1889 on the same subject, was not bound to go into particulars in the title. But in fact it did so by enumerating classes of streets authorized to be occupied in such detail as to indicate as already discussed the general intent to open all streets not already actually occupied, or covered by a valid existing right of occupation. The objection to the title cannot prevail.

It will not be amiss at this point to call the attention of legislators and the draftsmen of statutes to the growing practice of long titles. In the desire to conform to the constitutional requirement that the subject of an act must be clearly expressed in the title it has become quite usual to load the title with details that have no proper place there, and produce certain inconvenience and not improbable danger. Expressio unius exclusio alterius. Titles which mislead are even worse than those which merely fail to inform, and the enumeration of many details always incurs the danger that thereby others which would have seemed cognate and germane may have been meant to be excluded. Instances are not wanting in the legislation of the last few years where the title of an act is longer and more complicated than the act itself, and a point is not beyond proximate expectation where the query may arise whether the subject of an act can be “clearly” expressed by a title which requires more time and effort to comprehend than the enactment itself. It has always been held that the title of an act need not be a complete index to its contents. The time has come to say that it not only need not but ought not.

This discussion, having considered and decided the points raised by the commonwealth, might properly end the opinion. But the learned attorney general while not adopting in behalf of the state the arguments of the appellant in the other branch of the case, the Thirteenth and Fifteenth Streets Railway Co. v. The Broad Street Rapid Transit Co. has given them a qualified sanction which makes it proper to devote a brief notice to them.

The act of 1866, which is the foundation of all branches of the present controvers}', authorized and required the city of Philadelphia to take Broad street for a public drive and upon that being done provided that thereafter no tracks should be placed on that street by any person or corporation. What steps the city of Philadelphia took to get Broad street clear, do not appear.

Antedating the act of 1866 the Thirteenth and Fifteenth Streets Railway Co. claimed a franchise (arising from a merger of the Navy Yard, etc., Co.) to lay tracks on Broad street, and was proceeding to do so when it was enjoined at the suit of the city, and pending an appeal a settlement was made resulting in the passage of the Act of March 26, 1873, P. L. 435, by which the railroad company was authorized to surrender its asserted rights on Broad street, and “ in consideration of such surrender, no franchise or pri vilego to construct a track or tracks or any artificial tramway, for the conveyance of passengers for hire, upon any portion of said Broad Street, or upon Thirteenth or Fifteenth Streets, or other of said company’s connections, or to run any cars upon any part of said routes, shall bo hereafter granted to any person or persons, or body politic.” The company made the surrender by formal agreement with the state lodged with the secretary of the commonwealth at Harrisburg. This is the class of streets specified in clause (e) of the act of 1901 already recited. It would appear that the franchise claimed by the railway company was valid at least until taken by the city under the act, of 1866, and the injunction was therefore erroneously issued: Hestonville, etc., Pass. R. R. Co. v. City of Philadelphia, 89 Pa. 210. But as the compromise was madp while the matter was still sub judice and in doubt, the merits of the original question are not now involved.

In addition to the argument of the commonwealth as to the intent and constitutionality of the act of 1901 it is now argued for the railway company that the act of 1873 was a contract with the state which cannot be abrogated. But it is conceded that one legislature cannot grant away the state’s right of eminent domain so as to bind future legislatures: In re Opening of Twenty-second Street, 102 Pa. 108.

It is further argued that if the act of 1873 is repealed it is a taking of private property,- to wit: a franchise for another private franchise of no higher degree. But no franchise of the Thirteenth and Fifteenth Streets Company on Broad street is taken. It had none. What it formerly had was surrendered, and the consideration was the negative one of being protected from the rivalry of another company on that street. This consideration is taken by eminent domain, but provision is made for compensation. Moreover, what is a higher use is primarily a legislative question, and if the legislature enacts that the positive franchise of laying tracks on a street is superior to the negative one of preventing them from being laid, the courts would hardly be justified in holding such enactment so clearly wrong as to be void.

Lastly, it is urged that if the act of 1873 is repealed then the franchise of the Thirteenth and Fifteenth .Streets Company on Broad street was restored and the compajny had two years to put it in operation before any other company could obtain a new franchise to supersede it. There is a degree of propriety and justice in this claim that appeals strongly to our sense of right. But, unfortunately, the law is not so written. Broad street was barred to railway tracks of any party from 1873 to 1901. The act of 1901 opened the street to occupation by any railway corporation chartered under this act or by any company which has abandoned or discontinued the use thereof,” but it gave no preference, the privilege was open to all on equal terms and prior action secured the prior right.

The judgment of ouster is reversed and the writ is dismissed.


author: Mr. Justice Brown,

text:
    Brandmeier v. Pond Creek Coal Company, Appellant.

      Lease — Coal lease — Dispute of title — Husband and wife — Estoppel— Evidence.

    Where a married woman died seized of an estate in land underlaid with coal, leaving to survive her a husband and children, and the husband after the death of his wife executes a lease of the coal as if it were his own, but the lessee before making improvements examines the records and finds the true state of title, the lessee cannot, after having made improvements, claim that the children were estopped from denying the lease, because with constructive notice of the record, they stood by and let the improvements be made; and this is especially so, where the evidence shows that the children acted on the belief that their mother had left a will by which the land in question had been devised to their father.

      Husband and wife — Curtesy—Seisin.
    In this state, while actual seisin of the wife during coverture is not necessary to entitle the husband to claim by curtesy, the right to recover immediate possession of the estate during coverture must exist, and the husband cannot be tenant by the curtesy of his wife’s estate in reversion or remainder expectant on an estate of freehold unless the estate is' ended during coverture.
    Argued April 15, 1907.
    Appeal, No. 170, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1903, No. 409, on verdict for plaintiff in case of Frederick Brandmeier et al. v. Pond Creek Coal Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Ejectment for coal in Foster township.
    Before Ferris, J.
    The opinion of the Supreme Court states the facts.
    The court gave binding instructions for plaintiffs.
    The jury returned a verdict “ in favor of the plaintiffs, and against the defendant for an undivided one-half interest of the premises described in the writ, and apportion said half as follows: an undivided one-fourth to Erederick Brandmeier and an undivided one-fourth to Mary Mills, subject to any interest or estate, if any, of George Fernau.”

      Error assigned was in giving binding instructions for plaintiffs and in entering judgment on the verdict,

      J. Q. Creveling, with him D. L. Rhone, for appellants.

      Edmund G. Butler, with him Daniel Kline, for appellees.
    June 25, 1907:
   Opinion by

Mr. Justice Brown,

Barbara Brandmeier was the owner of the forty acres of land in dispute, by deed from David Dean, dated May 10, 1862, and duly recorded. She died intestate June 16, 1893, seized of this land, and left surviving her a husband, Ludwig Brandmeier, and five children, Frederick, Mary, John, Susan and Elizabeth. ’ Elizabeth was married to George Fernau, and died since her mother’s death and before that of her father, intestate, childless, and leaving her husband to survive her. Ludwig Brandmeier remarried, and, on January 15, 1896, executed a lease for twenty-oneyears of all the coal under the forty acre tract that belonged to his wife, and a sixty acre tract adjoining, which belonged to him, to A. Judson Lathrope et ah, the predecessors in title of the Pond Creek Coal Company, the present appellant. Ludwig Brandmeier died April 10, 1903. At the time he executed the lease to Lathrope et al., the records showed that the title to the forty acre tract was in Barbara Brandmeier, and failed to show any conveyance or devise of the property by her to anyone. Shortly after the lease was made, and before any improvements were placed upon the premises, Lathrope, one of the lessees had acquired actual knowledge that the title was in Mrs. Brandmeier, and, with such knowledge, the subsequent operations were started and carried on. This statement, taken from the opinion overruling the motion for a new trial, is the subject of one of the unseemly criticisms of the trial judge by counsel for the appellant. This criticism is not only unseemly, but utterly inexcusable, for Lathrope testified that shortly after the lease was made he learned from the deed to Mrs. Brandmeier itself that the property was hers. His testimony as to this was as follows: “ Q. And at the time you discovered this you had not opened any mine ? A. No, sir: we had done a lot of proving. Q. You had not built a breaker? A. No, sir, Q,. You had not made the improvements? A. No, sir.”

Frederick Brandmeier and Mary Mills, the appellees, were affected with constructive notice oí the recorded title in their mother, but they had reason to believe she had left a will devising it to their father. This clearly appears from the testimony. Upon obtaining actual knowledge that the property belonged to them, the appellees, with promptness, consulted counsel, gave notice of their claim to the appellant and algo to the executor and trustee under their father’s will, forbidding him to accept, as trustee, any royalties for coal mined from the forty acre tract, and from the testimony it seems that no such royalties were knowingly received by him. Before this suit was brought two of the four surviving children of Barbara Brandmeier, John and Susan, formally ratified the lease made by their father, with the same effect as if they had been parties to it.

One of the defenses made by the appellant is that the appellees are estopped by their conduct from contesting the coal lease made by their father of the forty acre tract owned by their mother. Their conduct is alleged to have been active assistance in opening and operating the mine and other encouragement by them which misled the appellant and its predecessors in title to their great injury. As to this defense, in the opinion overruling the motion for a new trial, it is said: “Even though the fact of Mary Mills’ coverture, be disregarded, there was no proof of any conduct, whether of act, word or silence, on the part of the plaintiffs or either of them, by which the defendant or its predecessors were misled to their injury. Both parties had access to the public records, had equal opportunity to know what they contained, and were equally affected with constructive notice that the title to the forty acre tract was in Barbara and not in Ludwig Brandmeier. The failure of the children to notify the defendant or its predecessors of what they were, in law, presumed to know, and what, in fact, they had an equal opportunity with the plaintiffs to ascertain, was not the failure to perform a duty, was not such silence as would amount to fraud and raise an estoppel. Moreover, the testimony shows that it was common talk in the family that Barbara Brandmeier had devised the land to her husband and that the children so believed. This fact, if it be a fact, is comparatively unimportant, however, being merely a cumulative circumstance to rebut an inference of fraudulent silence which could not be properly drawn in any event from the other evidence in the case. Nor is there any proof of positive misleading acts on the part of either plaintiff, which were relied upon by the defendant or those under whom they claim, and by which they were induced to change their position for the worse.” . Our examination of the testimony has led us to the same conclusion and' to a further one that the appellant cannot raise the question of estoppel arising from the conduct of the appellees during the lifetime of their father. Though they had constructive notice that the title to the land was in their mother and may have actually known this, they did not have actual knowledge until after their father’s death that it belonged to them and their brother and sister, for from the talk in the family they believed their mother had willed it to their father. But this was not so with Lathrope, one of the original lessees, through whom the appellant claims title. Shortly after the lease was executed he got into his hands — for he so testifies — the deed to Barbara Brand-’ meier, and then learned that the property belonged to her. He knew she was dead, but, without making any further inquiry from her children, or anyone else, as to the right of her surviving husband to make the lease, he and his associates, not having up to that time opened a mine or made any improvements, proceeded to do so, and we are now asked to say that, though the appellant and its predecessors in title had full knowledge that Ludwig Brandmeier could not execute a lease that would affect the rights of his wife’s children in the property, two of them, the appellees, are estopped by their alleged conduct during their father’s lifetime. The doctrine of estoppel is not in the case. Under the undisputed facts the lessees could have had no mistaken opinion about their rights under the lease of the forty acre tract before they began operations on it, but, on the contrary, knew exactly what they had acquired from the tenant by curtesy. Their exact knowledge was superior to that of the appellees, but if the real truth had been known to both, or if their means of knowledge had been equal, there would be no estoppel: Knouff v. Thompson, 16 Pa. 357; Hill et al. v. Epley et al., 31 Pa. 331; Woods v. Wilson, 37 Pa. 379; Bright v. Allen, 203 Pa. 394.

Another position assumed by the appellant is that the lease from Ludwig Brandmeier contains a warrant for quiet enjoyment, and the appellees, having taken assets under his will, are bound by his covenant. The lease contains no express warranty, and the court below was of opinion that there was no implied one under the act of May 28, 1715, 1 Sm. L. 94; Stewart’s Purdon, 1172. Whether there was an implied warranty we need not decide, for, even if there was, there is nothing in the testimony to show that the appellees ever received assets from their father’s estate, or made any election to receive the same that commits them to the lease. On July 18, 1903, a little more than three months from his death, the appellant had notice that the heirs of Barbara Brandmeier claimed the forty acre tract. W. G. Thomas, its president, so testifies. On the 31st of the same month the first payment for royalties was made to the executor of Ludwig Brandmeier. He was called as a witness by the appellant and testified that when the check was given him for royalties, he said he would not accept royalty for any coal mined from the forty acre tract, and was assured that the check was for coal mined from the sixty acre tract. He further testified that he had not paid anything to the appellees from their father’s estate. In view of this there is no merit in the second defense.

By direction of the court the verdict rendered in favor of the plaintiffs was for an undivided fourth of the land to each, subject to any interest or estate of George Fernau. Elizabeth, the wife of George Fernau, died before her father, and her husband acquired no title as tenant by the curtesy in her interest in the land. Under the English law, to entitle the husband to his curtesy the wife must have been seized in fee and in deed, and not merely in law of the state of inheritance, and, if there was an outstanding title for life, the husband could not be tenant by the curtesy of his wife’s estate in reversion or remainder, unless the particular estate ended during coverture. And it is still the general rule of law that there must be an entry daring coverture to enable the husband to claim tenancy by the curtesy: 4 Kent, 29; Mercer’s Lessee v. Selden, 42 U. S. 37. In this state, while actual seisin of the wife during coverture is not necessary to entitle the husband to claim by curtesy, the right to recover immediate possession of the estate during coverture must exist, and the husband cannot be tenant by the curtesy of his wife’s estate in reversion or remainder expectant on an estate of freehold unless the estate is ended during coverture: Chew v. Commissioners of Southwark, 5 Rawle, 160; Hitner v. Ege, 23 Pa. 305; Buchanan v. Duncan, 40 Pa. 82; Williams v. Baker and Wife, 71 Pa. 476. As George Fernau acquired no right as tenant by the curtesy, so much of the verdict as recognizes it is to be treated as surplusage, and upon return of the record judgment is directed to be entered generally for the plaintiffs.


text:
    Quinn v. Pennsylvania Railroad Company, Appellant.

      Appeals — Interlocutory order — Quashing appeal — Production of books and papers — Act of February 27, 1798, 3 Sm. L. 303.
    Where in an action against a railroad company to recover treble damages for an alleged illegal discrimination in the distribution of cars among shippers, an order is made making absolute a rule on the defendant to produce distribution sheets, and the defendant takes an appeal before the plaintiff enters a judgment against the defendant by default, as provided by the Act of February 27, 1798, 3 Sm. L. 303, the appeal will be quashed, inasmuch as such an order is interlocutory.
    Argued April 23, 1907.
    Appeal, No. 284, Jan. T., 1906, by defendant, from order of C. P. Clearfield Co., Dec. T., 1904, No. 294, making absolute rule to produce papers in case of John Quinn v. Pennsylvania Railroad Company.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Appeal quashed.
    Trespass to recover damages for an alleged wrongful discrimination in the distribution of coal cars.
    From the record it appeared that the plaintiff, after issue had been joined, obtained a rule on the defendant to show cause why certain distribution sheets should not be produced for his inspection in advance of the trial. This rule was taken in accordance with the act of February 27, 1798, 3 Sm. L. 303, which is as follows:
    “ The Supreme Court and several courts of common pleas in this state shall- have power in any action depending before them, on motion, and upon good and sufficient cause shown, by affidavit or affirmation, and due notice thereof being given, to require the parties, or either of them, to produce books or writings in their possession or power, which contain evidence pertinent to the issue; and if either party shall fail to comply with such order, and to produce such books or writings, or to satisfy said courts why the same is not in the party’s power so to do, it shall be lawful for the said courts, if the party so refusing shall be a plaintiff, to give judgment for the defendant as in cases of nonsuit, and if a defendant, to give judgment against him or her by default, as far as relates to such parts of the plaintiff or plaintiff’s demands, or the defendant or defendant’s defense, to which the books or papers of the party is alleged to apply.”
    The court made the rule absolute, and the defendant forthwith took an appeal alleging the order as error.

      Thomas H. Murray, of Murray & O'Laughlin, and John G. Johnson, with them Geo. Stuart Patterson, for appellant.
    The order entered by the court below is, it is submitted, a final one, from which an appeal will lie: Davenport Co. v. Penna. R. R. Co., 166 Pa. 480; Moelling v. Lehigh Coal & Nav. Co., 9 Phila. 223; Cottrell v. Warren, 18 Pa. 487; Butler v. Fayerweather, 91 Fed. Repr. 458; Cassatt v. Mitchell Coal & Coke Co., 150 Fed. Repr. 32.

      David L. Krebs, with him Patterson & Gleason and A. M. Liveright, for appellee.
    The order of August 9, 1906, is interlocutory: Stultzfoos’s App., 3 P. & W. 265; Horner et al.’s Lateral Railroad, 37 Pa. 333; Hall’s App., 56 Pa. 238; Chicago Life Ins. Co. v. Auditors of Public Accounts, 100 Ill. 478; Pfeiffer v. Crane, 89 Ind. 485; Palethorp’s Est., 160 Pa. 316; Pennsylvania Steel Co.’s App., 161 Pa. 571; Platt v. Coal Mining Co., 191 Pa. 215; Slingluff v. Sisler, 193 Pa. 264; Transit Co. v. Pipe Line Co., 180 Pa. 224; Bostwick v. Brinkerhoff, 106 U. S. 3 (1 Sup. Ct. Repr. 15); Grant v. Phœnix Life Ins. Co., 106 U. S. 429 (1 Sup. Ct. Repr. 414); St. Louis, etc., R. R. Co. v. Express Company, 108 U. S. 24 (2 Sup. Ct. Repr. 6); Winthrop Iron Co. v. Meeker, 109 U. S. 180 (3 Sup. Ct. Repr. 111); Benjamin’s Heirs v. Dubois, 118 U. S. 46 (6 Sup. Ct. Repr. 925); Hale v. Henkel, 201 U. S. 43 (26 Sup. Ct. Repr. 370); Cowles v. Cowles, 2 P. & W. 139; Bossler v. Johns, 2 P. & W. 331; Logan v. Pennsylvania R. R. Co., 132 Pa. 403; Gilpin v. Howell, 5 Pa. 41, 55; Dunham v. Riley, 4 Wash. C. C. 126; Wright v. Crane, 13 S. & R. 447; McNair v. Wilkins, 3 Wharton, 551; Tuttle v. Loan Co., 6 Wharton, 216.
    June 25, 1907:
   Opinion by

Mr. Justice Brown,

Error was committed in making this order, but we cannot now correct it. The order was an interlocutory one, and the appeal from it must be quashed: Logan et al. v. Pennsylvania Railroad Co., 132 Pa. 403. For refusal to comply with it the penalty will not be attachment for contempt, but the statutory one of judgment by default for the plaintiff. Until such judgment .is taken the defendant cannot be harmed by the court’s order to produce the daily distribution sheets. If it should be. taken, on appeal from it, in reversing it, our reasons will be given -why the order should not have been made.

Appeal quashed.


text:
    Beckman v. Meadville & Cambridge Springs Street Railway Company, Appellant.

      Negligence — Street railways — Independent contractor — Cleaning and repairing cars.

    One street railway company may employ another street railway company as an independent contractor to clean and repair its cars.
    In an action against a street railway company to recover damages for death, it appeared that at the point where the accident occurred, the tracks were the property of a traction company, but were in joint use by that company and the defendant under a traffic agreement, by which the defendant paid the traction company two and a half cents for every passenger it carried over the latter’s line. The agreement also provided that the cars of the defendant were to be cleaned and repaired by the traction company. Two cars of defendant had been delivered under this agreement to the traction company, which dismantled one of them, attached it by chains to the other and started both towards the car barn for cleaning and repair. On the way the coupling chains broke and the dismantled car ran on a down grade at increasing speed until it collided with the car of defendant on a siding. The deceased was a passenger on the car which was struck. The workmen who were engaged in repairing and cleaning the cars, were employed, controlled and discharged by the traction company, and an account was kept of their wages for such services, as a basis upon which the defendant paid. Held, (1) that the method of paying for cleaning and repairing on the basis of wages did not make the workmen, whose negligence caused the accident, coemployees of defendant; (2) that no joint obligation of both companies for the safe carriage of defendant’s passengers arose from the payment to the traction company of two and a half cents for every passenger carried; (3) that the traction company was an independent contractor for cleaning and repairing, and as such that it and not the defendant, was liable to the plaintiff for the negligence of its workmen.
    Argued April 30, 1907.
    Appeal, No. 176, Jan. T., 1907, by defendant, from judgment of C. P. Crawford Co., May T., 1906, No. 36, on verdict for plaintiff in case of Byrninnia Beckman v. Meadville & Cambridge Springs Street Railway Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband.
    Before Thomas, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court refused binding instructions for defendant. [1]
    The court charged in part as follows :
    [We say to you as a matter of law, as between Mr. Beck-man and his legal representatives and this defendant company, it could not relieve itself of its obligation to Mr. Beckman by giving a contract to some other company to repair its cars, or to operate its cars, and if the cars were being hauled on the contract of another company and results in an injury to Mr. Beckman, that would not relieve the defendant. You see, the companies operated by agents; a corporation cannot run a car ; they must have persons to do so; and when the Meadville & Cambridge Springs Street Railway Company hired the Meadville Traction Company to repair its cars, the Meadville Traction Company and the persons working for it were the servants or agents of the Cambridge Springs line and the Meadville & Cambridge Springs Street Railway Company is responsible for the negligence, not only of themselves, but for the negligence of those with -whom they have contracted to do work in and about their line and cars. Nor does it matter for the purpose of this case, whether the employees who were operating this car were employees of the Meadville Traction Company, or of the Meadville & Cambridge Springs Street Railway Company. It may be there is some obligation and rights existing between these companies, but if the agent of the company that undertook to take John F. Beckman over its line was guilty of negligence which resulted in the death of Mr. Beckman, the Cambridge Springs Company is responsible for that act of the Meadville Traction Company. It is responsible for the acts of its servants, and if the cars were being operated, as we say, it does not matter, for the purposes of this case, as to whether the persons operating those cars were at that time working for the Meadville Traction Company, or for the Meadville & Cambridge Springs Street. Railway Company, providing they were acting for the defendant company as their agent or servants, and providing further, that they were guilty of negligence which resulted in the death of Mr. Beckman. You can readily see that a trolley company could not delegate its right to use its road to some other person unless the legislature permitted it to do so, and thereby relieve itself from obligation to a person that it had obligated itself to carry safely over its line. The only possible question that might arise as to this is as to whether or not these men were acting under the authority of neither company.] [10]
    Verdict and judgment for plaintiff for $3,150. Defendant appealed.

      Errors assigned among others were (1, 10) above instructions, quoting them.

      J. P. Hunter, of Lyon, Hunter & Burke, with him A. G. Church, for appellant.
    The rule of res ipsa loquiter has no application, as the car causing the collision was operated solely by the Meadville Traction Company, and even if a presumption of negligence arises from the fact that the passenger was injured in the collision, that presumption was rebutted when it was shown that the car causing the collision was operated by the traction company on its own tracks, and by its own employees: Meier v. Penna. R. R. Co., 64 Pa. 225; Pennsylvania R. R. Co. v. MacKinney, 124 Pa. 462; Thomas v. Phila. & Reading R. R. Co., 148 Pa. 180; Fredericks v. Northern Cent. R. R. Co., 157 Pa. 103; Fleming v. Ry. Co., 158 Pa. 130.
    As the colliding oar was being solely operated by the traction company, the defendant company was not liable for the negligence of the crew of that company: Van Steuben v. Central R. R. of N. J., 178 Pa. 367.
    The men operating the colliding car were not the servants or employees of the defendant: Catawissa R. R. Co. v. Armstrong, 49 Pa. 186; Keck v. R. R. Co., 206 Pa. 501.
    The car causing the collision was being operated by the traction company on its own road, and by its own employees. The defendant is not responsible for any negligence occurring in such operation: Wright v. Midland Ry. Co., Law Rep. 8 Exch. 137; Sprague v. Smith, 29 Vt. 421; Murray v. Lehigh Valley R. R. Co., 32 L. R. A. 539; Peters v. Rylands, 20 Pa. 497; Rauch v. Lloyd & Hill, 31 Pa. 358; Sullivan v. R. R. Co., 30 Pa. 234; McElroy v. R. R. Co., 58 Mass. 400; White v. R. R. Co., 136 Mass. 321; Kearney v. Central R. R. of N. J., 167 Pa. 362; McGovern v. Union Traction Co., 192 Pa. 344; Penna. R. R. Co. v. Spicker, 105 Pa. 142.

      James P. Colter, with him Thos. J. Prather and Manley O. Brown, for appellee.
    The defendant was liable: Peters v. Rylands, 20 Pa. 497; Rauch v. Lloyd, 31 Pa. 358; Littlejohn v. R. R. Co., 20 N. E. Repr. 103; Champion v. Bostwick, 18 Wendell, 175; White v. R. R. Co., 136 Mass. 321; Barter v. Wheeler, 49 N. H. 9; McElroy v. Nashua, etc., R. R. Co., 58 Mass. 400; Wabash, etc., Ry. Co. v. Peyton, 106 Ill. 534; R. R. Co. v. Barron, 72 U. S. 90; Brady v. Chicago, etc., Ry. Co., 114 Fed. Repr. 100; Pennsylvania Co. v. Roy, 102 U. S. 451; Sullivan v. R. R. Co., 30 Pa. 234; Oil Creek, etc., Ry. Co. v. Keighron, 74 Pa. 316.
    June 25, 1907:
   Opinion by

Mr. Chief Justice Mitchell,

The essential facts so far as they concern the liability of the defendant are not in dispute. The tracks at the point where the accident occurred were the property of the Meadville Traction Company, but were in joint use by that company and the' defendant under a traffic agreement. For the purposes of this case, therefore, they are to be considered as the property of each in turn while in use by it. Under the agreement the cars of defendant were to be cleaned and repaired by the traction company. Two cars of defendant had been delivered under this arrangement to the traction company, which dismantled one of them, attached it by chains to the other and started both towards the car barn for cleaning and repair. On the way the coupling chains broke and the dismantled car ran on a down grade at increasing speed until it collided with the car of the defendant on a siding. The plaintiff’s husband was killed in the collision, and, being a passenger on defendant’s car, the presumption of negligence arose and the burden of proof was on defendant to rebut it. This was fully done. The indisputable proximate cause of the accident was the breaking of the chain by which the dismantled car was attached to the one in front which drew it, and its thus being released from control and started on its dangerous descent. The sufficiency of the means and method. of attachment for purpose of traction was the only question of negligence in the case. But it was not the negligence of this defendant. The fact that the colliding car was the property of the defendant was immaterial. For the time being it was the property of the traction company, having been delivered to it for repair and not yet returned. "Whether it was on its way to the car barn for further work or for storage or for delivery is hot material, it had not been returned to the defendant but was still in the hands and under the control of the traction company which for this purpose was an independent contractor. Cleaning and repairing cars was no part of the defendant’s franchise which could not be delegated. It was the ordinary case of ah independent mechanic receiving an article for repair and while in custody of it so using it as to injure another person. If the traction company had hauled the car out to the other end of its road for the repairs and the accident had taken place there where defendant’s cars did not run no question would have arisen as to defendant’s liability. Yet the case is not different. Neither the ownership of the colliding car nor the place of the accident has .any relevancy at all to the question of defendant’s liability.

The negligence, if any, from which the accident resulted was so far as the evidence showed that of the workmen who attached the dismantled car to the one drawing it. They were the employees of the traction company. Some effort was made to show that the defendant paid for their services, but the evidence only went so far as to show that as between the two companies the traction company was to repair and clean the cars at cost and that it therefore kept an account, inter alia, of the wages paid for such services and the defendant paid on.that basis. The workmen themselves were employed, controlled and discharged by the traction company and were in no sense coemployees of the defendant.

Another effort was made to hold defendant liable on the ground that by the agreement it paid the traction company two and a half cents for every passenger it carried over the latter’s linos, and therefore when the decedent paid his fare there arose a joint obligation of both companies for his safe carriage. But there is no basis for such claim. The defendant under the agreement was a lessee of running rights over the traction company’s tracks, and the division of fares was only a method of estimating the rental to be paid. The traction company remained in the sole ownership and control of the road and the defendant no more entered into a joint liability by that arrangement than any other tenant by an agreement to pay rent to his landlord. The class of cases arising from accidents caused by defective roadbed, running regulations, etc., for which the joint users of the road are equally liable to their passengers, has no applicability to the facts of the present case.

Summing np the whole case briefly it shows the defendant using what must be treated as its own track, lawfully and without negligence, and having its passenger killed by the act of a third party, over whom it had no control and for whose action it was in no wise responsible. The presumption of negligence arising from the death of a passenger by collision having been fully rebutted and there being no evidence to show negligence in fact, the verdict should have been directed for the defendant.

Judgment reversed and judgment directed to be entered for the defendant non obstante veredicto.


text:
    Downey Brothers v. Pennsylvania Railroad Company, Appellant.

      Railroad companies — Change of grade — Waters—Damages.
    In an action against a railroad company to recover damages for injuries resulting from water by reason of an alleged illegal change of grade of a street in front of plaintiff’s premises, where the pleadings show that the plaintiff’s claim is for injuries of a temporary nature, or to personal property, the plaintiff may recover for such injuries as were suffered subsequent to his acquisition of title, even though the act causing them had occurred before that date.
    In such a case it is proper to limit the jury in the amount of their verdict to such a sum, as would, if properly expended, have prevented the water from flowing into the property; and it is not error in making this conditional upon the finding by the jury that the plans suggested, or some of them, should be effective.

      Evidence — Witness—Estimate by witness — Change of grade.

    Where a witness testifies that he has actually seen the work of changing the grade of a street carried out, he may give an estimate as near as he can tell of the height of the change of grade, although he had not made an actual measurement.

      Appeals — Assignments of error — Evidence—Place where evidence is printed.

    An assignment of error to the exclusion of evidence will not be considered, where the assignment does not refer to the place where the matter referred to, appears in its regular order in the printed evidence as required by rule 31.
    Argued May 20, 1907.
    Appeal, No. 182, Jan. T., 1906, by defendant, from judgment of O. P. Lancaster Oo., Aug. T., 1902, No. 93, on verdict for plaintiffs in case of Downey Bros. Spoke and Bending Company, Incorporated, v. The Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover, .damages for injuries to land, resulting from change of grade of a street.
    The opinion of the Supreme Court states the case.
    When Charles W. Bitner, a witness for the plaintiff, was on the stand, he was asked this question ;

      “Q. In front of the Downey property, as nearly as you can tell, how much did they raise the track, how many inches ? ”
    Objected to by the defendant, unless he measured it.
    The Court: The witness may answer if he knows.
    “ A. I couldn’t say to a certainty. I never measured it.”
    “ Q. Give us your best judgment.”
    Objected to by defendant.
    The Court: lie may answer that.
    Defendant excepts. Bill of exceptions signed and sealed. [4]
    “ Q. As nearly as you can tell. A. Possibly eight or nine inches I would suppose, as near as I can toll.”
    Defendant presented the following points :
    1. As the plaintiff in this case is seeking to recover damages alleged to have boon caused by water flowing from North Mulberry street into its property, it cannot recover unless the injuries were caused by some act of the defendant occurring after April 19, 1901, the date of the incorporation of the plaintiff, prior to which time the plaintiff had no existence. Answer : This point is affirmed, if it means that the injuries were suffered after April 19, 1901. If it means that the act of the defendant must have occurred after April 19, 1901, to entitle plaintiff to recover, then we refuse the point. [1]
    3. As the plaintiff in this case is seeking to recover damages, alleged to have been caused by water flowing into its property from North Mulberry street, it is not entitled to recover more than such sum as would have enabled it to prevent the water from flowing into its property. Answer: This point is affirmed, if you believe that the plans proposed, or one of them, would have protected the property, or prevented the injury complained of, and then it would only be the measure of damages for such injuries as the adoption of one of these plans would have prevented. [2]
    4. If the plaintiff was damaged by reason of the raising of the railroad tracks on North Mulberry street, it was the duty of the plaintiff, after its incorporation, to do all in its power to lessen such injury, and prevent any damages caused by reason of such raising, and is only entitled to such sum as would prevent water from flowing in from North Mulberry street. Answer : This point we affirm, if you believe this could have been done and the cost would have been less than the injuries sustained. [3]
    Yerdict and judgment for plaintiff for $2,274.21. Defendant appealed.

      Errors assigned were (1-3) above instructions, quoting them; (4) ruling on evidence, quoting the bill of exceptions.

      H. M. North, with him H. M. North, Jr., for appellant.
    W. U. Hensel, with, him W. R. Brinton, for appellee.
    June 25, 1907:
   Opinion by

Mr. Justice Potter,

The plaintiff corporation, as the owner and occupant of certain real estate in the city of Lancaster, situated on the east side of North Mulberry street, sought in this action to recover damages from the defendant company, for injuries resulting from an unauthorized and illegal change of the grade of its railway tracks upon the street in front of the plaintiff’s premises. The statement of claim is not very clear, in this respect, but we understand it to be for temporary injuries, although it does include interference with access to the premises, which would seem to be of a permanent nature. However, the interference with the access is alleged to be for certain specified months, and for a period subsequent thereto, and the language of the statement as a whole seems to indicate that the claim is for injuries of a temporary nature, or to personal property. If the injuries were of a permanent nature, and were caused by an act of defendant company, committed before the plaintiff acquired title to the property, the right to recover for the permanent injuries would belong to the former owner. This question was not argued, and it only arises incidentally in com nection with the first assignment of error, in which complaint is made of the answer to defendant’s first point. In this, the court was asked to charge that plaintiff could not recover unless the injuries were caused by some act of the defendant occurring after April 19, 1901, the date of the incorporation of the plaintiff. As a matter of fact, April 19 was not the date of the incorporation, but it was the date of the deed.

The point was not accurately framed in that it made no distinction between tbe act of the defendant, and the injurious consequences resulting from the act. It did not follow that the injuries resulting from the overflow of water, especially those to the personal property, would be felt immediately. The court affirmed the point as presented by counsel for defendant, upon the assumption that it meant that the injuries were suffered after April 19, even though the act causing them had occurred before that date. This was correct as regarded injuries of a temporary nature or those to personal property. Damages to land are a personal claim to the owner at the time the injury occurs. They do not run with the land, or pass by deed: McFadden v. Johnson, 72 Pa. 335; Warrell v. Wheeling, etc., R. R. Co., 130 Pa. 600. But, as we have already said, the issue in this case seems to have been made up and tried by both sides, upon the theory that the claim was not for injuries of a permanent nature, but was confined to those of a temporary character, and to personal property. Under that assumption, the rights of the defendant were duly guarded by the court.

In affirming the defendant’s second point for charge, the trial judge limited the jury expressly to such damages as occurred after the plaintiff acquired the property. So also in answering the third and fourth points, the jury were limited in the amount of the verdict, to such a sum as would if properly expended have prevented the water from flowing into the property. There was no error in making this conditional upon the finding by the jury that the plans suggested, or some one of them, should be effective. If not, they should of course have been ignored. In his general charge, the trial judge instructed the jury at length on the questions raised by the third and fourth points, and substantially as therein requested. We see no merit in the fourth assignment of error. The witness there referred to whose evidence was admitted against objection, testified that he saw the work of raising the tracks being done, and he gave the height as near as he could tell. He gave an estimate only, and it was accepted as such, and it was within the limits fixed by other witnesses who had made accurate measurements.

The fifth and sixth assignments, which are to the exclusion of certain evidence offered by defendant, are bad because neither of the assignments refers to the place where the matter referred to appears in its regular order in the printed evidence, as required by rule 31. They will not therefore be considered: Cameron v. Traction Co., 216 Pa. 191; Hallock v. Lebanon, 215 Pa. 1.

We see no merit in any of the questions which are raised in this appeal by the assignment's of error, and the judgment is affirmed.