text:
    Hoyt v. Kingston Coal Company, Appellant.

      Mines and mining—Coal lease—Royalties—Change of sizes of coal—Coal for generating steam—Estoppel.

    While a lessee under a coal lease has the right under the contract to adopt new methods in the preparation of coal so as to meet the market demands for the smaller sizes of coal, such lessee must account and pay for the same proportionate part of the coal as the terms of the lease required under the methods of preparation in use at the time the lease was executed.
    Where a coal lease stipulates for a royalty on all coal on the land that could be by skillful and careful mining, and without waste, mined and conveyed in mining .cars to the breaker, and there passed over a five-eighths of one inch square mesh.screen, the lessees are not entitled to a credit for so much coal as passed through the screen and was formerly abandoned as waste, and for coal contained in seams which were not worked at the date of the lease, but were subsequently operated.
    Where a coal lease provides that the lessees shall pay a royalty of fifteen cents per ton “for all coal” mined and removed “which will pass over a screen the meshes of which are five-eighths of one inch square,” and there is no authority in the lease to use royalty coal for the generation of steam, the lessees must account for coal used in operating the plant.
    Where the lessors in a mining lease are paid minimum royalties and had no knowledge from accounts submitted to them or from other sources of the mining of any excess of royalty coal over the quantity paid for, they are not estopped from collecting royalties for coal mined and not accounted for.
    Wright v. Warrior Run Coal Co., 182 Pa. 514, discussed, explained and followed.
    Mitchell, C. J., and Potter, J., dissent.
    Argued April 12, 1905.
    Appeal, No. 326, Jan. T., 1904, by defendant, from decree of C. P. Luzerne Co., March T., 1896, No. 2, on bill in equity in case of John D. Hoyt et al. v. The Kingston Coal Co.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for an account of coal royalties. Before Halsey, J.
    The opinion of the Supreme Court states the facts.

      Errors assigned were various findings quoted in the opinion of the Supreme Court, and the decree for an account.

      Henry W. Palmer and Samuel Dickson, with them A. L. Williams, for appellant.

      Henry A. Fuller and George B. Bedford, with them Charles N. Loveland, and John G. Johnson, for appellees.
    May 22, 1905:
   Opinion by

Mb. Justice Mestbezat,

This was a bill filed by the plaintiffs to compel the defendant company to account and pay for coal mined and removed under the terms of a lease dated April 10, 1867, made by the ancestors of the plaintiffs with the defendant’s assignors. By the terms of the lease, all the coal in and under certain tracts of land in Luzerne County were demised and let to the lessees for the consideration of a rental of fifteen cents for each ton of coal which would pass over a screen, the meshes of which wei’e five-eighths of one inch square. A minimum annual rental of $4,500 was to be paid by the lessees for which they were entitled to mine and remove 80,000 tons. Mining operations were begun by the lessees soon after the execution of the lease and continued until 1883, when the lease was assigned to the defendant company, which has since continued the operations. The defendant, from time to time, made payments on the royalties but not in excess of the minimum annual sum required by the terms of the lease. This bill was filed to compel an accounting for a balance of royalties alleged to be due the plaintiffs. It is claimed by the plaintiffs that by the methods of preparing coal for the market since 1883 a much larger percentage of the mine product, brought to the surface in the cars, passes through the meshes of the screen than did so in 1867, the date of the execution of the lease, and that they are entitled to royalty on the difference in the quantity of coal passing through the meshes of the screen caused by the new method of preparation as part of the consideration for which the body of coal was sold. The learned trial judge states the position of the plaintiffs as follows: “ The plaintiffs contend that by reason of the change in the machinery for the preparation of the coal to meet the changed condition of the market, that the consideration money to be paid to the lessors for the sale of the coal under and by virtue of the grant in the lease in proportion to the quantity of coal shipped has greatly diminished by reason of the fact that the methods introduced to meet the demands of the market have occasioned and required the introduction of machinery that has caused a larger proportion of the contents of the mines to pass through the five-eighths of one inch square mesh than passed through as a result of the machinery in use at the time the lease was executed.” In reply to this contention, the defendant company alleges as a full defense to the plaintiffs’ claim, that the present methods of mining have resulted in producing more coal from the deposit in the veins than was obtained by the methods prevailing at the time of the execution of the lease; that at that time a large quantity of royalty coal was not removed from the mine but was thrown on the refuse pile; that then certain seams of coal were of such character as to be valueless when mined, but a change in the market has made them valuable and the plaintiffs get royalty on the coal from those seams; that royalty coal then used to generate steam on the premises is not now used for that purpose but is paid for by the defendant company.

The trial judge found that at the time of the execution of the lease by the methods and machinery employed in mining and preparing coal and known to the parties, a less proportion of the mine product passed through the meshes of the screen than passed through it from the time the defendant company began mining operations in 1883 till the filing of the bill; and “ that the said excess of the proportion of the product of the mine passing through the said five-eighths of one inch square mesh has been occasioned by the change of the methods in the preparation of coal in the use of higher explosives in blasting it from the vein deposited in the mine, by the introduction of a greater number of rolls in the breaker than were used at the time of the execution of the lease as an effort on the part of the defendant to increase out of the product of the mine, the amount of smaller sizes to meet the changed demands of the market.” He further found that by the methods employed in preparing coal at the execution of the lease .10655 per cent of the mine product passed through the meshes of the screen and that by the subsequent and present methods used in the preparation of the coal, .2652? per cent of the product passed through this screen. Against this difference of .15867 per cent of the loss caused to the plaintiffs by the different methods of preparation of the coal, the court credited the defendant with the bad coal reclaimed, amounting to, .0359 per cent, “leaving a net loss to tbe plaintiffs since the introduction of the new methods over the old methods of .12277.” The court ordered the defendant company to account to the plaintiffs for this amount of coal at the royalty price named in the lease.

In the disposition of the case, the learned trial judge followed the principles announced in Wright v. Warrior Run Coal Company, 182 Pa. 514. The defendant’s counsel claim that “ that case was decided on the peculiar language of the contract and upon the finding of fact by the master,” and is not a precedent for the determination of the questions raised here. But in this we do not concur, and are clearly of the opinion that unless we overrule that case it is controlling here. In fact, the defendant’s counsel practically concede that the Wright case rules this and ask us to overrule it by citing and quoting at length, in support of their contention, the dissenting opinion filed in that case. That was a bill for an 'account of royalties for pea and buckwheat coal, which are of smaller sizes than chestnut coal, shipped and sold, and for coal used at the mine for steam purposes. The contract fixed the royalty coal above the size of chestnut coal, and in the present case the royalty coal is all that passes over a screen with a five-eighths of one inch square mesh. There, there was a shifting scale of prices per ton with a minimum quarterly payment during the life of the lease, with a fixed price per ton if the term was extended. The earlier and later methods of preparing the coal were similar to those in this case. Justas here, some time after the mining operations commenced, the demand for the larger sizes of coal rapidly decreased, while the demand for chestnut, a smaller size on which a half royalty price was payable, greatly increased. To meet the new market demand, additional rollers were introduced which broke and rebroke the coal and largely increased the quantity of the smaller sizes of coal. One of the complaints in the bill was “that defendant, by changes in machinery and methods of preparing the coal for market, has largely increased the quantity of chestnut coal, for which the lower royalty is paid, and further, largely increased the quantity of pea and buckwheat coal, for which it denies its liability to pay any royalty.” The bill prayed, inter alia, that defendant account for all coal rebroken for the purpose of increasing the product of chestnut and smaller sizes. There, as here, the defendant contends “.that the lease provides for breaking the coal, and that its very silence as to the extent it shall be broken, or the proportion of the sizes, leaves defendant free to adopt such methods for the future as will adapt the coal to the market demand, without thereby increasing its liability for royalty.” The conclusion of the master, sustained by this court, ■ was as follows: “ In our opinion, the terms of the lease fairly contemplate vthe breaking of the whole mine product into the different sizes of what was ‘ prepared coal ’ in 1864, with their proportionate percentages to one another, by means of the methods and appliances in general use at that time and the manner then employed of operating such appliances, if the demands of the defendant’s market for selling coal reasonably require the breaking and preparation of the product to that extent, and the operation be performed ‘ with as much economy and as little waste as may be ’; and payment of royalty measured by this standard is all that the contract calls for. To this extent we concur with the position of counsel for the defendant ; but we find nothing in the terms of the lease which contemplates the breaking of this mine product to a greater extent than that already indicated, and while new conditions of the market for the sale of the defendant’s coal in competition with other operators has justified it in adopting methods and machinery by which not only all the mine product has been broken to prepared sizes, but to the smaller of these sizes, whereby a great proportionate increase of chestnut and pea coal has occurred, these were not contemplated by the contract, and therefore the plaintiffs are entitled to payments of royalty upon the standard above indicated.”

In the case in hand, the trial judge, in speaking of the consideration for the coal leased or sold and the lessees’ right to adopt new methods of preparing coal, says : “ The consideration money for the said sale must be governed by the amount of coal that would pass over a five-eighths inch square mesh by the methods used in its preparation at the date of the execution of the lease. The lessees undoubtedly have the right to introduce new methods to meet the demands of the market in the preparation of the coal which would result in breaking up the coal to a greater extent than the methods that were in use at the time of ‘the execution of the lease, yet to the extent to which they thus diminish the amount of coal that would pass over the screen called for in the lease, they would be bound to pay the stipulated royaltyper ton.” It will be observed, therefore, that the court followed and enforced the rule announced in the Wright case, that while the defendant company had the right under the contract to adopt new methods in the preparation of coal so as to meet the market-demands for the smaller sizes of coal, yet it must account and pay for the same proportionate part of the coal as the terms of the lease required under the methods of preparation in use at the time the lease was executed.

As in the Wright case, the-court below in this case held that the defendant is entitled, as against the plaintiffs’ claim, to have a credit of so much coal as was redeemed by the new methods from bone and slate. But in addition to this, the defendant company contends that it should also be allowed a credit for so much coal as passed through the rake and was abandoned as waste in 1867, and for coal contained in certain seams which were not worked at the date of the lease, but are now operated by the company. But this contention overlooks the provisions of the lease that the “ demised premises shall be worked in a careful and skillful manner .... and that no waste of coal shall be caused or permitted in mining, preparing and conveying the same away.” It was a duty, therefore, imposed on the lessees by the contract that they should work all the leased coal carefully and skillfully to the extent at least of the minimum annual quantity fixed by the lease and permit no waste in mining or preparing it. The consideration to which the lessors were, and are entitled by the express stipulation of the contract, was a royalty on all coal in the land that could be, and was, by skillful and careful mining and without waste, mined and conveyed in mining cars to the breaker and would there pass over a five eighths of one inch square mesh screen. The methods of preparation used by and known to anthracite operators at the time the lease was executed must be presumed to have been in the contemplation of the parties when they executed the contract, and such coal as was produced by those methods furnished the basis of the lessors’ consideration for the lease and must now and during the continuance of the lease determine the quantity of coal on which royalty must be paid. If the lessees should leave coal in the mine which was marketable and would pass over the screen, it would be waste and a consequent violation of their contract. That it was at one time not marketable and was for that reason permitted to remain in the mine, will not excuse the lessees or their assignees in not conveying it to the breaker now, or, if passed over the screen, entitle them to a credit against the plaintiffs’ demand. It would likewise be a violation of their contractual obligation were the lessees to fail to mine any seam of coal included in the lease which could be mined and removed by the customary methods of mining during the existence of the lease. They are not compelled to mine all of the veins at the same time. They are simply required to mine and remove the annual minimum quantity of coal, ascertained by passing it over the requisite sized screen, or pay the minimum royalty thereon during the term for which the lease was to run, as provided in that instrument. The fact, therefore, that certain seams were not being operated at the time of the execution of the lease does not entitle the defendant company to a credit for coal now being taken from those seams by the mining methods in use at this time.

■ Nor is there any merit in the defendant company’s contention that it is entitled to a credit for the amount of royalty coal used for the generation of steam on the premises. It is true that in the Wright case the lessees were not required to pay royalty on the coal used under their boilers, but the master’s conclusion was based on the terms of the lease in that case, and in affirming the correctness of that conclusion Mr. Justice Dean, speaking for this court, says : “ And this last conclusion (that lessees were not required to pay royalty on coal used under their boilers), the master shows, from the terms of the lease and invariable custom, to be a correct one.” In the present case, however, the lease does not authorize the use of royalty coal for the generation of steam, or relieve the lessees from accounting for it. On the contrary, the lease distinctly provides that the lessees shall pay a royalty of fifteen cents per ton “ for all coal ” mined and removed “ which will pass over a screen the meshes of which are five-eighths of one inch square.” The lease in this case, therefore, not only does not contemplate or provide that the lessees shall not pay for royalty coal used in generating steam in operating the plant, but explicitly requires them to pay for all the mine product which is carried to the breaker and passes over a screen having meshes of the designated size.

The fourth assignment alleges error in the court’s conclusion that “ the plaintiffs are not estopped by any acts on their part of by the acts of those for whom they act in a representative capacity, from now making this claim.” This very question was raised in the Wright case and ruled against the position taken here by the defendant. There this court held that the lessor had waived his right to cláim additional rentals because he had full knowledge of the excessive product of the smaller sizes of coal, and receipted in full when payments of royalties were made. But as to the lessor’s representatives after his death, it was held that they had not waived their right t'o a recovery for such rentals because “ there is proof of knowledge on their part that the production of chestnut coal was in excess of that within the meaning of the contract.” Yet they had access to the premises and the lessees’ books and receipted for the royalties when each installment was paid them. Here there was no account settled and the only payments made were for the minimum sum due under the lease, and the mining itself was less than the minimum tonnage. No receipts were given, and the evidence does not disclose knowledge of the mining of any excess of royalty coal over the quantity paid for. The plaintiffs are, therefore, not estopped from collecting royalties for coal mined and not accounted for.

The evidence justifies the finding of the trial judge as to the proportion of waste and the quantity of coal for which the defendant company should account to the plaintiffs. There is some confusion in the learned judge’s findings of fact, but it does not affect the result at which he arrives. It arises partly from his not discriminating clearly between the methods of mining and the methods of preparation of the coal in determining the defendant company’s liability to account. It is liable for any loss in the quantity of royalty coal resulting from the change of the methods of preparation.

The learned trial judge has correctly determined the rights of the parties to this controversy under the facts of the case, and therefore the decree is affirmed.

Mitchell, C. J., and Potter., J., dissent.


source: Caselaw Access Project

author: Mb. Justice Mesteezat,

license: Public Domain

text:
    Foust v. Pennsylvania Railroad Company, Appellant.

      Railroads—Highways—Substituting one highway for another—Damages— Exceptional damages—Actions.

    Where a railroad substitutes one highway for another, it will be liable to a landowner, if in constructing the substituted road it damages such owner in a manner peculiar to himself and different in kind and degree from and beyond that which is sustained by the general public.
    Where a railroad company in constructing a substituted road makes access to a mill so inconvenient and dangerous as to drive away the customers of the mill alid compel its closing up, the owner of the mill may recover damages from the railroad company.
    Where in the improvement of its road, a railroad company occupies a public highway and supplies another, a common-law action may be maintained by a party injured thereby whose lands have not been taken in changing the site of the original highway, and whose injuries are peculiar to himself, and different in kind and degree from those sustained by the general public.
    Argued April 18, 1905.
    Appeal, No. 265, Jan. T., 1904, by defendant, from judgment of C. P. Huntingdon Co., Feb. T., 1903, No. 12, on verdict for plaintiff in case of I. N. Foust v. Pennsylvania Railroad Company.
    Before Dean, Brown, Mestrezat, Potter and.ELKiN, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a mill property. Before Woods, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Defendant presented the following points:
    7. That under all the evidence in the case their verdict must be for the defendant. Answer: Refused. [1]
    4. That plaintiff has failed to show any damage which is peculiar to himself and different in kind and degree from and beyond that which is sustained by the general public. Answer: It is for the jury to determine whether the plaintiff has suffered any damage peculiar to' himself. [2]

      3. That even if the jury believes that access to plaintiff’s mill property was more convenient by the old road than by the new one, which was substituted for it, that fact would not entitle the plaintiff to damages, none of his land having been appropriated by the defendant company. Answer: Refused. [3]
    1. That the defendant in the reconstruction of its roadbed at the point in question had the right to abandon the overhead bridge and grade crossing, and to substitute therefor the subway, if it deemed such a change of site of the highway necessary, and the determination of the question by the defendant is conclusive, in the absence of ány abuse or misuse of the power thus committed to it. Ansiver: Affirmed; if the jury believe that if the defendant company constructed the substitute road in such a way as not to damage the plaintiff in a manner peculiar to himself and different in kind and degree from and beyond that which is sustained by the general public. [4]
    The court charged the jury in part as follows :
    [You must also take into consideration the manner and kind of road which the defendant company made to take the place of the other means of access and ways to and from said mill. Was it such a road as the public could travel over to and from said mill in the same manner and without greater difficulty than was experienced on the old ways. These are matters for you to decide. The defendant company was* not bound to make any change in that part of the township road which was not disturbed by it; After having determined these facts, then if you decide the company did not furnish a road sufficiently good and sufficient to take the place of the old road and that the plaintiff has been damaged 'in a manner peculiar to himself, then we say to you the plaintiff is entitled to recover. If on the other hand you believe from the evidence that the road which has been constructed by the company furnishes just as convenient and good a route as was there before then we say he cannot recover.] [5]
    [It is not the duty of the railroad company to make a better ■ way, but it should make just as good a way as was in place before the change. If, therefore, you believe the defendant company, in making the change which it did, damaged the plaintiff in a way peculiar to himself and different to the public then we say to yóu he can recover; if it did not then he cannot recover.] [6]
    Verdict and judgment for plaintiff for $5,000. Defendant appealed.

      Errors assigned were (1-6) above instructions, quoting them.

      John D. Dorris, for appellant.
    The request for binding instructions in favor of defendant should have been affirmed instead of refused: Gold v. Philadelphia, 115 Pa. 184; Hobson v. Philadelphia, 155 Pa. 131; Com. ex rel. v. Killinger, 1 Pearson, 257.
    Public streets and highways belong to the commonwealth, and when the government sees fit to -vacate them the consequential loss, if there be any, must be borne by those who suffer it: McGee’s Appeal, 114 Pa. 470; Hartman v. Incline Plane Co., 159 Pa. 442; Penna. R. R. Co. v. Lippincott, 116 Pa. 472; Penna. R. R. Co. v. Marchant, 119 Pa. 541; Jones v. Erie & Wyoming Valley R. R. Co. 151 Pa. 30; Penna. Co. for Ins., etc., v. R. R. Co., 151 Pa. 334; Neff v. R. R. Co., 202 Pa. 371; Pittsburg Southern Ry. Co. v. Reed, 6 Atl. Repr. 838.

      II II Waite, with him Thos. E. Bailey, for appellee.
    We have a clear right of action if the nature of our injury is such as to entitle us to recover: Phillips v. Dunkirk, etc., R. R. Co., 78 Pa. 177.
    A common-law action maybe maintained against a corporation for an injury done to private property in the exercise of the right of eminent domain: Penna. Railroad Co. v. Duncan, 111 Pa. 352; P. & R. Railroad Co. v. Patent, 17 W. N. C. 198.
    The damage must be peculiar to the person injured, differing both in degree and kind from that of the general public: Penna. R. R. Co.’s App., 115 Pa. 514; Penna. Schuykill Val. R. R. Co. v. Walsh, 124 Pa. 544; Penna. Co. v. R. R. Co. 151 Pa. 334.
    May 22, 1905:
   Opinion by

Mb. Justice Mesteezat,

The plaintiff is, and has been for many years, the owner of a gristmill which is situated about twenty-five yards south of the defendant company’s railroad and near the north bank of the Juniata river, in Brady Township, Huntingdon.county. The village of Mill Creek lies on the north side of the railroad, and, in 1901, two public roads led from it to the mill, one crossing the railroad just west of the mill at grade, and the other, by an overhead bridge 420 feet east of the grade crossing. Customers of the mill approached by one route and departed by the other. In 1901, the defendant company constructed two additional main tracks at this point on the south side of its road which necessitated the abandonment of the two crossings which led to the plaintiff’s mill. As a substitute for the abandoned crossings the company constructed a new public road which passes under the railroad about 180 feet west of the former grade crossing. The plaintiff brought this action to recover damages for injuries which he alleges he has sustained by reason of the destruction of the two public roads crossing the railroad, and averred in the statement, inter alia, as follows: “ That by reason of the overhead bridge and the grade crossing aforesaid, the patrons of his mill had convenient and easy access thereto, and that since the destruction of the said overhead bridge and the grade crossing, by said defendant, access -to and from his mill has been rendered extremely dangerous and difficult, so that few, if any, of his former patrons will patronize his mill, and that the usefulness of his mill has been practically destroyed; that prior to the destruction of the bridge and grade crossing by the said defendant company, the mill afforded the plaintiff large profits by its operation and was a valuable and productive property; since the destruction of the said bridge and the said grade crossing by the defendant company, he has been unable to operate his mill except at a loss and has been compelled to cease operating it; . . . . that he has by reason of the destruction of the said overhead bridge and the said grade crossing suffered great and lasting injury peculiar to himself as owner of the said mill, and due to the peculiar location of the bridge and grade crossing relative to his mill.” The case was submitted to the jury which returned a verdict for the plaintiff and, judgment having been entered on. the verdict, the defendant has appealed.

The defendant company in its second assignment alleges error in the court’s answer to its fourth point, which is as follows : “ The plaintiff has failed to show any damage which is peculiar to himself and different in kind and degree from and beyond that which is sustained by the general public.” The court’s answer was: “It is for the jury to determine whether the plaintiff has suffered any damage peculiar to himself.” The correctness of this answer is the controlling and only question which requires consideration on this appeal. The counsel for the defendant contends that the question was one of law and not of fact to be determined by the jury. In this we do not concur.

In his charge, the learned trial judge said: “The Pennsylvania Railroad Company has under different acts of assembly been clothed with the right and authority to change and alter a public road in order to make improvements on its roadbed or for the better operation of its railroad, but it is also provided that if it does change and alter a public road it is bound to furnish the traveling public with another road to take its place, and we say to you further, that if in making such change or alteration the company damages any individual in a manner peculiar to that individual and different in kind and degree from and beyond that which is sustained by the general public, the company would be liable in damages to the private individual so injured. It is not the duty of the railroad company to make a better way, but it should make just as good a way as was in place before the change. If, therefore, you believe the defendant company, in making the change which it did, damaged the plaintiff in a way peculiar to himself and different to the public, then we say to you, he can recover; if it did not then he cannot recover.”

It will be observed, therefore, that under the pleadings and the charge of the court the liability of the defendant company for damages in the case depended upon the question whether or not in the reconstruction of the public road, Avhich the defendant company had taken in widening its railroad, the plaintiff Avas damaged “ in a manner peculiar to himself and different in kind and degree from and beyond that which is sustained by the general public.” ,If that question is found by the jury on sufficient evidence in the affirmative, .the defendant would be liable, and under such finding the defendant company could not, and we do not understand that it does, deny its liability. We think there was ample evidence to go to the jury on the question. There was testimony to the effect that before the change in the highways the patrons of the mill approached it by one crossing and departed by another; and that either was convenient and safe and afforded easy access to and from the plaintiff’s mill. Usually, the customer approached the mill with his grain by the grade crossing and left it by the other route. On the other hand, it clearly appears, if the testimony is credible, that by the removal of the grade and overhead crossings and the construction of the new road, the mill is rendered very difficult of access, if not entirely inaccessible, by two and four horse teams in conveying grain to the mill and the product away from it; that by reason of the changes and resulting present conditions, the former large trade of the mill had left it and thereby made the property almost valueless for .milling purposes. It is manifest from the testimony, if that is credible, that the injuries to the plaintiff, occasioned by the destruction of the former roads and the construction of the substitute way, are not only such as result simply from the plaintiff being deprived of the use of the abandoned crossings as ways of passage in common with the public, but also those that arise from the destruction of his valuable milling property by-rendering it inaccessible to the public. The learned judge was, therefore, clearly right in submitting the question to the jury and subsequently in not disturbing their finding.

The learned counsel for the defendant company says in his printed brief: “ The gist of the plaintiff’s contention, therefore, was that the defendant company had not reconstructed the portion of the public road, ‘ on the most favorable location and in as perfect a manner as the original road,’ as it was required by its charter to do.” It is suggested that the remedy for such an injury is a proceeding under the act supplementary to the defendant company’s charter, approved March 20,1849, P. L. 196. It will be observed, however, that the question raised in the contention attributed to the plaintiff’s counsel is not raised by the material averments of the plaintiff’s statement, quoted above, and was not the question submitted by the court to the jury. The issue raised by the pleadings is not whether the defendant has reconstructed the abandoned highways “ on the most favorable location and in as perfect a manner as the original road ” as its charter required it to do, but whether by . taking the former highways and in reconstructing the substitutecl way,- the injuries resulting to the plaintiff are peculiar to himself and not such as are common to the public. In affirming defendant’s point the trial judge told the jury that the defendant had the right to abandon the two crossings and to substitute therefor the subway, “ if the jury believe that the defendant company constructed .the substituted road in such a way as not to damage the plaintiff in a manner peculiar to himself and different in kind and degree from and beyond that which is sustained by the general public.” That was the issue presented on the record and determined by the verdict of the jury. ■

_ We may say in conclusion, although not necessary to a demisión of the issues involved in this case, that we entertain no doubt that where in the improvement of its road a railroad company occupies a public highway and supplies another, a common-law action may be maintained by a party injured thereby whose lands have not been taken in changing the site of the original highway, and whose injuries are peculiar to himself and different in kind and degree from those sustained by the general public.

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


author: Mr. Justice Mestrezat,

text:
    Stickles v. Oviatt, Appellant.

      Partition—Decedents’ estates—Inclusion of all the real estate—Widow.

    Where any of the heirs of a decedent attempt to compel partition of the decedent’s real estate either in the common pleas, or orphans’ court, they must, if practicable, include in the proceédings all the real estate which passes to them as heirs, and is held by them as tenants in common. The fact that certain of the heirs assigned to the widow of the decedent a portion of the real estate for her use for life, is no ground for not including in partition proceedings the portion of the land in the possession of the widow. Where the bill in partition contains a description of the part of the real estate assigned to the widow and an averment that the deceased died seized of it, a failure to include such real estate in the proceedings may be taken advantage of by demurrer.
    Where certain of the heirs of a decedent have assigned to the widow of the decedent a life interest in a portion of the real estate, the widow must be included as a party in subsequent partition proceedings to divide the whole of the real estate.

      Argued May 1, 1905.
    Appeal, No. 303, Jan. T., 1904, by defendant, from decree of C. P. McKean Co., June T., 1904, No. 2, on bill in equity in ease of Hiram S. Stickles, Jacob Stickles, Lydia Smith, Jay Stickles and Adelbert E. Stickles v. G. O. Oviattetal.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Potter, JJ.
    Reversed.
    Bill in equity for partition. Before Bouton, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree awarding partition.

      Rufus B. Stone, with him J. M. MoGlure, and Allan Oviatt, for appellant.
    The widow should have been joined : Brown’s App., 84 Pa. 457; Barclay v. Kerr, 110 Pa. 130; Gourley v. Kinley, 66 Pa. 270.
    It has been judicially declared that it is incumbent upon the petitioners to bring the whole of the real estate before "the court; there cannot be Several inquisitions by parcel: Rex v. Rex, 3 S. & R. 533.

      F. B. Gallup, with him V. B. Bouton, for appellees,
    cited: Ziegler v. Grim, 6 Watts, 106; Seiders v. Giles, 141 Pa. 93; Hunsecker’s Est., 6 Pa. Dist. Rep. 202; Coleman v. Coleman, 19 Pa. 100; Sheetz v. Emerick, 5 Phila. 190; Richards v. Rote, 68 Pa. 248; Crouse v. Bedell, 11 Pa. Superior Ct. 598.
    May 22, 1905:
   Opinion by

Mr. Justice Mestrezat,

This was a bill filed by certain heirs of Miller C. Stickles, deceased, against his other heirs for the partition of about one-half of the real estate of which he died seized. He died January 20, 1903, intestate, and left no lineal descendants, but left a widow who was not made a party to the proceedings. The defendants demurred to the bill and assigned as causes of demurrer that (a) it should have included all the real estate of which the deceased died seized ; and (b) the widow should have been made a party to the proceedings. The demurrer was overruled and subsequently, on the refusal of the defendants to answer, a final decree of partition was entered.

The court below committed manifest error in overruling the demurrer. It should have been sustained and the bill dismissed.

The parties to the suit held the real estate under a common ancestor, and neither his title nor that of any of the parties is in dispute. On the death of the ancestor, the title to all his real estate passed to plaintiffs and defendants, subject to the dower rights of his widow which was a life interest in the one-half of the real estate. Under such facts, we have held in numerous cases that where any of the interested parties attempt to compel partition, either in the common pleas or orphans’ court, they must, if practicable, include in the proceeding all the real estate which passed to the heirs of the deceased and is held by them as tenants in common. This was ruled as long ago as 1817 in Rex v. Rex, 3 S. & R. 533, where Mr. Justice Duncan said (p. 539) : “ Under the proceedings founded on the intestate laws, it is incumbent on the petitioners to bring the whole real estate before the court. There cannot be several inquisitions of it by parcels. For then the inquest could not accommodate the children with as many portions of the whole estate as it might be capable of accommodating them with.” The same rule has been adhered to and followed in more recent years. In Ihmsen v. Ormsby, 32 Pa. 198, Mr. Justice Strong, delivering the opinion, says (p. 201) : “ It is true that, ordinarily^ in proceedings in partition in that (orphans’) court it is incumbent upon the petitioner to bring before the court the whole of the real estate of the decedent, subject to partition. If it appears affirmatively, on the presentation of the petition, that all is not included, the inquest should be refused, and if on return of the inquisition this defect became manifest, the proceedings should be quashed.” In Everhart v. Shoemaker, 2 Walk. 158, Mr Justice Clark, speaking for the court, states the rule and the reasons for it as follows (p. 164): “ In partition, however, in the common pleas or in the orphans’ court, it is without doubt incumbent on the party instituting the proceedings, if practicable, to embrace the whole of the undivided realty within the jurisdiction or power of the court. There cannot be inquisitions upon it, by parcels ; such a course of proceeding would, through the exercise of the right of election, as fixed by law, give unfair and unjust advantage to those first entitled. There should, in general, when the title and possession is certain and determined, be but one inquisition, embracing all the lands, tenements and hereditaments held and possessed by the parties, together and undivided, within the reach of the writ; and the record in all. cases will, upon proper application, be made to conform to and commensurate with the rights of the parties. We do not say that the omission of any of the parcels from the partition would upon any principle of estoppel, or otherwise, affect the estate or title of the parties, or of either of them, but we do say it is the right of both to have the whole embraced in the proceedings, if that right is not waived.” These cases have been followed and approved in Deshong v. Deshong, 186 Pa. 227, and in Holmes v. Fulton, 193 Pa. 270. Such is held to be the law in other states : Grove v. Dickinson (Ala.), 39 Am. St. Rep. 67.

The plaintiffs’ contention that it was not practicable to include in the proceeding the land in possession of the widow is without merit and has nothing to sustain it. The agreement signed by the widow and part of the heirs assigning to her the use of one-half of the real estate was fio reason for not including that portion of the property in the lands to be divided. Had all the heirs signed the agreement and if it bound all of them, it gave the widow but a life estate in the portion set apart to her and still left in the heirs the remainder which might then have been the subject of partition. But aside from this consideration, the agreement was not signed by all the heirs, and as to those not signing, it was, of course, inoperative and would be no reason for omitting from the partition proceeding the lands described in it and in possession of the widow. The parties not signing the agreement, therefore, clearly have the right to demand that all the real estate of the deceased be included in the partition proceedings. Nor can we sustain the plaintiffs’ position that the failure to include in the proceedings part of the real estate cannot be taken advantage of in this case by demurrer. That contention would have been correct had the plaintiffs omitted from the bill the description of that part of the real estate assigned to the widow and the averment that the deceased died seized of it. Had not these facts appeared in the bill and hence constituted a bar apparent on its face, the defendants would have been compelled to set them up in a plea.

The learned court was also in error in not sustaining the demurrer on the ground that the widow was not made a party to the proceeding. The agreement was not signed by all the heirs interested in the real estate of the ■ deceased, and those parties had a right to demand partition of all real estate of which the intestate died seized, and hence the widow was a necessary party to the proceeding. If by a valid agreement, all the interested parties had conveyed or assigned to the widow for life the premises in her possession, it might have raised a different question from that presented here by this record, but, at least, some of the demurrants did not sign the agreement of March 19, 1904, setting apart to her the one-half of the real estate “ so that she may freely enjoy the full use of her one-half moiety and receive the rents, issues and profits of the same to her sole and absolute use during her natural life.” This, therefore, is the ordinary case of a bill brought by an heir for partition of an intestate’s real estate to which, as has been frequently held, the widow must be made a party. In Brown’s Appeal, 84 Pa. 457, Mr. Justice Paxson, delivering the opinion, says (p. 459) : “ If this bill had been filed by the heir the jurisdiction could not well have been questioned. Yet in such case the widow would have been a necessary party, and her rights would have been ..ascertained in such proceeding.” The ruling of this case was recognized and approved in the subsequent case of Barclay v. Kerr, 110 Pa. 130, where Mr. Justice Gordon, speaking for the court, says (p. 134) : “ That a widpw is properly a party in a writ of partition, as Avell in the common pleas as in the orphans’ court, is. settled by the act of March 29, 1832, P. L. 190, and the case of Brown’s Appeal, 84 Pa. 457 ; 'it is, therefore, useless to cite to us decisions that were made prior to that act, and that now have no binding force.”

It follows that the first three assignments of error must be sustained and the bill be dismissed. The other assignments become immaterial and need not be considered.

The decree is reversed and the bill is dismissed at the cost of the appellees.


author: Mr. Justice Elkin,

text:
    Hyde v. Baker, Appellant.

      Equity jurisdiction—Remedy at law—Fraud.

    Equity jurisdiction will not attach, where there is a full, complete and adequate remedy at law; and this is the case even where fraud is alleged.
    A creditor’s bill cannot be maintained to declare fraudulent deeds of property executed by a debtor to a third person, for a reconveyance of the same to the debtor, and for an injunction to restrain the debtor from executing conveyance of the property to third parties, or in any manner incumbering the same until the claims of the creditor were established. In such a case the creditor has a full, complete and adequate remedy at law by a sheriff’s sale on an execution, a purchase of the title followed by an action of ejectment.
    Argued Feb. 16, 1905.
    Appeal, No. 359, Jan. T., 1904, by defendants, from decree of C. P. Schuylkill Co., Nov. T., 1902, No. 1, on bill in equity in case of Edward S. Hyde v. E. H. Baker, Deborah L. Baker et al.
    Before Dean, Fell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Bill in equity to declare fraudulent certain deeds of conveyance.
    The bill having set forth certain conveyances executed by E. H. Baker and his wife, in alleged fraud of defendant’s rights as a creditor, concluded with the following prayers :
    1. That the said alleged deed from E. H. Baker and Deborah L. Baker, his wife, to George W. Gise, dated April 11, 1901, and recorded in recorder’s office of Schuylkill county in deed book 287, page 338, be declared fraudulent, void and of no effect.
    2. That the said alleged deed from George W. Gise and Mary M. Gise, his wife, to Deborah L. Baker, dated April 11, 1901, and recorded in recorder’s office of Schuylkill county in deed book 287, page 347, be decreed fraudulent, void and of no effect.
    3. That the said alleged deed from Deborah L. Baker and E. H. Baker, her husband, to G. S. Barr, dated August 27, 1902, and recorded in recorder’s office of Schuylkill county, in deed book 298, page 116, be decreed fraudulent, void, and of no effect.
    4. That the said Deborah L. Baker be decreed to execute a reconveyance of said real estate described herein to said E. H. Baker.
    • 5. That the said G. S. Barr be decreed to execute a reconveyance of the real estate described in the herein cited deed from said Deborah L. Baker and E. H. Baker, her husband, to him, to said E. H. Baker.
    6. That pending this bill the said defendant be specially and thereafter perpetually restrained from executing any transfer or conveyance to third parties of any of the real estate mentioned in said alleged deeds, or in any manner encumbering the same.
    7. That, if the said Deborah L. Baker and E. H. Baker, her husband, have already made any transfers of the interest of said E. H. Baker of any portion of said real estate for value, that they, the said Deborah L. Baker and E. H. Baker, be decreed to pay such consideration received or to be received to a trustee to be named by the court to abide the final disposition and payment of the said judgment of the said Edward S. Hyde against E. H. Baker to No. 129, September Term, 1901, for the sum of 12,454.30, with interest.
    The case was heard on bill, answer and proofs, and a decree was entered in favor of the complainant and in accordance with the prayers of his bill.

      JError assigned was the decree of the court.

      George W. Gise, with him W. F. Shepherd, for appellants.
    Complainant had an adequate remedy at law : Bowers v. Bennethum, 133 Pa. 306; Stewart’s App. 78 Pa. 88; Davidson v. Little, 22 Pa. 245; Taylor’s App., 93 Pa. 21.

      John F. Whalen, with him Wesley K. Woodbury, for appellees.
    Equity is the only proper and adequate remedy in this case: Thomson v. Dougherty, 12 S. & R. 448; Fowler v. Kingsley, 87 Pa. 449; Houseman v. Grossman, 177 Pa. 453.
    As a general rule, courts of equity have jurisdiction to relieve against every species of fraud. Where the remedy at law is not full or adequate, the jurisdiction of equity is undoubted : Clauer v. Clauer, 22 Pa. Superior Ct. 395.
    Equity has concurrent jurisdiction with law where property has been fraudulently conveyed in order to defeat the claim of creditors.
    In modern equity practice a eomplainantin a court of equity cannot be turned out of court for want of jurisdiction merely because he has a remedy at law; it must be shown further that his remedy at law is adequate: Gray v. Citizens’ Gas Co., 206 Pa. 303.
    May 22, 1905:
   Opinion by

Mr. Justice Elkin,

Did the court below have jurisdiction in equity to entertain this bill ? The answer to this question will dispose of this appeal. We do not dispute the general principle relied upon by the appellee that where fraud is alleged equity has concurrent jurisdiction with law. In our state, however, the settled rule has never been departed from that’ equity jurisdiction will not attach where there is a full, complete and adequate remedy at law. Our reports are full of cases in which this principle is involved, but in no instance has it been decided that equity had jurisdiction where all the above specified requirements of a remedy at law exist. In a very large and increasing number of cases equity jurisdiction has been sustained where under the peculiar facts thereof it was held that the remedy at law was inadequate or ineffectual. In some of the cases it was not full, in others not complete, in others.not adequate, and in still others it was neither complete nor adequate. Under such circumstances equity has concurrent jurisdiction. In the case at bar the remedy at law is full, complete and adequate, and our courts have frequently so held.

The appellee is a creditor. The principal appellant is a debtor. The bill asks that certain deeds of conveyance executed by the debtor to third parties be declared fraudulent, void and of no effect, and that a reconveyance of the properties therein described be directed to be made to the debtor. It also asks for an order restraining the debtor from executing any conveyance of said properties to third parties, or in any manner encumbering the same until the claims of the creditor have been satisfied. It is therefore a creditor’s bill. In such cases this court has frequently pointed out the proper legal remedy to pursue. It has always been the practice in this state for a judgment creditor to seize and sell in satisfaction of his debt any real estate in which his debtor has, or is believed to have, an interest. When it is alleged, as it is here that the debtor has sold and conveyed- his real estate for the purpose of delaying, hindering or defrauding his creditors, the proper manner in which to test the validity of the transaction is by a sheriff’s sale on an execution, a purchase of the title, followed by an action of ejectment: Stewart v. Coder, 11 Pa. 90; Appeal of Girard National Bank, 13 W. N. C. 101; Taylor’s Appeal, 93 Pa. 21 at p. 24; People’s Nat. Bank v. Kern, 193 Pa. 59. The cases relied upon by the court below and cited by the appellee here are not applicable to the present case. Fowler’s Appeal, 87 Pa. 449; Houseman v. Grossman, 177 Pa. 453; People’s National Bank of Pittsburg v. Loeffert, 184 Pa. 164, and Orr v. Peters, 197 Pa. 606, are cases in which the ordinary remedy at law would have been ineffectual, and under the peculiar facts thereof it was held to be inadequate. None of these cases go so far as we are asked to go here in sustaining this bill. How can it seriously be contended that equity jurisdiction attaches in this case, when, as the testimony shows, the appellee did pursue his remedy at law in the court of common pleas, obtained two judgments against his debtor, one of the appellants, caused execution to be issued thereon, sold all the real estate described in the- bill at sheriff’s sale, became the purchaser thereof, and now holds a sheriff’s deed for the same. He has pursued his remedy at law until he has secured whatever title the debtor had to the real estate involved in this controversy. By taking one step more, an action of ejectment, he can have the question determined whether there was a fraudulent conveyance to delay, hinder and defraud creditors. He must pursue that remedy if he desires to test the validity of the transactions about which he complains.

What we have said is fatal to this proceeding and makes it ' unnecessary to discuss the other questions raised by the assignments of error.

Decree reversed and bill dismissed, costs to be paid by the appellee.


author: Mb. Justice Fell,

text:
    Armstrong, Appellant, v. The Pennsylvania Railroad Company.

      Negligence—Railroads—Grade crossings—“Stop, look and listen”—Case for fury.

    In an action against a railroad company to recover damages for personal injuries sustained at a grade crossing, the case is for the jury where the evidence tends to show that the plaintiff approached the crossing riding in an open carriage drawn by two horses; that he was familiar with the crossing, and knew that a train was about due; that he stopped when the horses’ heads were ten or twelve feet from the tracks, and looked and listened for a train; that there was no other place from which he could have seen the train at a greater distance, and this was admittedly the best place at which to stop; that neither seeing nor hearing the train he concluded that it had passed the crossing and drove on without looking again until his horses were on the track; and that his horses were struck by a train running backwards, of the approach of which no signal was given.
    Argued May 8, 1905.
    Appeal, No. 338, Jan. T., 1904, by plaintiff, from order of C. P. Fayette Co., March T., 1903, No. 76, refusing to take off nonsuit in case of John Armstrong v. The Pennsylvania Railroad Company, Lessee of and operating the South West Pennsylvania Railway.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Umbel, J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      D. W. McDonald, with him Thomas E. Hudson, for appellant.
    The case was for the jury: Ely v. Ry. Co., 158 Pa. 233; Davidson v. Ry. Co., 171 Pa. 522; Muckinhaupt v. Erie R. R. Co., 196 Pa. 213; Cromley v. Penna. R. R. Co., 208 Pa. 445; Fry v. Penna. R. R. Co., 24 Pa. Superior Ct. 147.

      JR. W. Playford, for appellee.
    A nonsuit was properly entered : Penna. R. R. Co. v. Beale, 73 Pa. 504; Aiken v. Penna. R. R. Co., 130 Pa. 380; Ritzman v. Phila. & Reading R. R. Co., 187 Pa. 337; Coppuck v. P. W. & B. R. R. Co., 191 Pa. 172; Long v. Milford Twp., 137 Pa. 122; Mattimore v. Erie City, 144 Pa. 14; Lehigh Valley R. R. Co. v. Greiner, 113 Pa. 600; O’Brien v. P. W. & B. R. R. Co., 3 Phila. 76; Carroll v. Penna. R. R. Co., 12 W. N. C. 348; Marland v. P. & L. E. R. R. Co., 123 Pa. 487; Hauser v. Central R. R. Co., 29 W. N. C. 471; Myers v. B. & O. R. R. Co., 150 Pa. 386; Urias v. Penna. R. R. Co., 152 Pa. 326; Holden v. Penna. R. R. Co., 169 Pa. 1.
    May 22, 1905 :
   Opinion by

Mb. Justice Fell,

The grade crossing at which the plaintiff was injured was exceptionally dangerous because of a curve and an embankment which prevented a person on the public road from seeing a train until it was within seventy-five yards of the crossing. The railroad tracks were on an embankment five feet above the public road, and immediately on the other side of them was a ravine or gully which added to the danger of the situation. The plaintiff was riding in an open carriage drawn by two horses. He was familiar with the crossing and knew that a train was about due. He stopped when the horses’ heads were ten or twelve feet from the tracks and looked and listened for a train. There was no other pla9e. from which he could have seen the train at a greater distance, and this was admittedly the best place at which to stop. Not seeing nor hearing the train, he concluded that it had passed the crossing and drove on without looking again until his horses were on the tracks. His horses were struck by a train running backwards, of the approach of which no signal was given.

Whether the plaintiff stopped as long as he should have stopped and exercised reasonable care under the circumstances was a question of much doubt under the testimony. But this question was for the jury. The plaintiff was .not proceeding without regard to his duty. He stopped at the proper place, close to the tracks, long enough to satisfy himself that he could cross in safety. Since there was nothing within the range of his sight or hearing that indicated danger, the court could not say that he actéd recklessly in going on. It was said by the present Chief Justice in Ely v. Railway Co., 158 Pa. 233: “ .... stopping is opposed to the idea of negligence, and unless, notwithstanding the stop, the whole evidence shows negligence so clearly that no other inference can properly be drawn from it, the court cannot draw that inference as a conclusion of law, but must send the case to the jury.”

Nor is it clear that the plaintiff failed in his duty to continue to look as he advanced towards the tracks. He had but a few seconds in which to look, and he necessarily gave some attention to his horses. The rule stated in Carroll v. Penna. Railroad Co., 12 W. N. C. 348, and the line of cases which have followed it is in its nature applicable only to clear cases where the facts and circumstances make the conclusion of negligence irresistible: McNeal v. Railway Co., 131 Pa. 184; Muckinhaupt v. Railroad Co., 196 Pa. 213.

The judgment is reversed with a venire facias de novo.


text:
    Commonwealth ex rel., Appellant, v. Baker.

      Bridges—County bridges—Act of June 13, 1836, P. L. 551—Practice— Mandamus.

    The erection of county bridges is regulated by statute, and all of the statutory provisions must be strictly complied with in order to make the proceeding effective and place the burden on the county. This is especially true when it is sought to compel the county commissioners by mandamus to construct the bridge at the expenses of the taxpayers.
    In such proceedings it is not only necessary to have the concurrence of the grand jury, the court and the county commissioners, but the concurrence of all three bodies' must be reasonably continuous. If it appears that there was an interval from the filing of the petition to the concurrence of the county commissioners of more than four years a mandamus will not be granted, inasmuch as the proceedings were not reasonably continuous within the provision of the act and the law announced by the courts. If the record also shows that a former board of county commissioners had refused to concur, there is all the more reason for denying the writ of mandamus. York County v. Smyser, 72 Pa. 24, distinguished.
    Argued May 9, 1905.
    Appeal, No. 60, Jan. T., 1905, by plaintiff, from order of C. P. Bedford Co., Sept. T., 1904, No. 273, refusing mandamus in case of Commonwealth ex rel. Hampton L. Carson, Attorney General, upon the petition of D. C. Cypher, M. W. Ford and Daniel Cypher v. S. S. Baker, Robert 0. Smith and George H. Appleman, Commissioners of Bedford County.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Petition for mandamus. Before Woods, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in refusing writ of mandamus.

      Edward M. Pennell, for appellant.
    When a bridge is authorized under the provisions of the act of June 13, 1836, and entered on the records as a county bridge,- mandamus will lie to compel the county commissioners to erect it: Commissioners of York County v. The Commonwealth ex rel. Smyser, 72 Pa. 24.

      B. 0. Eaderman, for appellees.
    Mandamus was properly refused : Pequea Creek Bridge Co., 68 Pa. 427; Bridge over Smithfield Creek, 6 Wharton, 363; Pittsburg, etc., R. R. Co. v. Lawrence County, 198 Pa. 1.
    May 22, 1905 :
   Opinion by

Mr. Justice Elkin,

The appellants seek to compel by mandamus the commissioners of Bedford county to erect a new bridge at the cost of the county. The petitioners rely upon the following facts to sustain the writ prayed for:

The viewers appointed to view and report on the necessity for the erection of the bridge were appointed March 25, 1897, and filed their report in court on April 19, 1897, in which the necessity of the bridge is found to exist, and that the expense of the erection of the same would be more burdensome than the township in which it was located could reasonably bear. On September 8,1897, the grand jury inquiring for the county concurred in the report of the viewers. No further action was taken upon this report until March 13, 1901, three 'and one-half years after the action of the grand jury, at which time the court approved of the report of the grand jury and the viewers. On April 2, 1901, the county commissioners concurred in the action of the grand jury and the court, and the bridge was entered on tbe records as a county bridge. The petition for the mandamus was filed July 26, 1904. The county commissioners made return to the alternative writ, which in substance averred that there was no necessity for the erection- of the bridge; that the proceedings by which it was entered of record as a comity bridge were irregular; that the report of the viewers with the concurrence of the grand jury had been presented to a former board of commissioners asking for concurrence;' that said board had refused to concur in the same; that by reason of these facts the proceedings to make it a county bridge either failed or were abandoned; and that under the provisions of the statute and rules of law applicable thereto, the attempt to compel the commissioners by mandamus to erect the bridge cannot prevail under the circumstances.

The petitioners demurred to the sufficiency of the return, thus admitting all the facts properly pleaded, and we have the case before us on the facts as presented by the petition and return. We will briefly review the provisions of the act of assembly and the decisions of this court in reference to the law bearing on the question in order to determine the rights of the parties. The thirty-fifth section of the Act of June 13, 1886, P. L. 551, provides, inter alia, as follows: When a river, creek or rivulet over which it may be necessary to erect a bridge, crosses a public road or highway, and the erecting of such bridge requires more expense than it is reasonable that one or two adjoining townships should bear, the court having jurisdiction as aforesaid, shall, on the petition of any of the inhabitants of the respective townships, order a view, in the manner provided for in the case of roads, and if on the report of the viewers it shall appear to the court, grand jury, and commissioners of the county, that such bridge is necessary, and would be too expensive for such township or townships, it shall be entered on record as a county bridge.”

The erection of county bridges is regulated by statute, and. all of the statutory provisions must be strictly complied with in order to make the proceeding effective and place the burden on the county. This is especially true when it is sought to compel the county commissioners by mandamus to construct the bridge at the expense of the taxpayers. This court has frequently laid down the rule relating to this class of cases.

In Long v. Commissioners of Franklin County, 2 Rawle, 154, Mr. Justice Rogers said: “ On the report of the viewers, it is the duty of the court, grand jury and commissioners, to determine whether the bridge is necessary, and would be too expensive for the township or townships to erect.”

In re Pequea Creek Bridge, 68 Pa. 427, Mr. Justice SharsWOOD, in passing on this question, stated: “ It is evident that the legislature intended that these three bodies should act as checks upon each other in the unnecessary expenditure of public money in the erection of county bridges. When either of them therefore have put their disapprobation on record, the proceeding falls. If it were not so taxpayers and others interested in opposing a county bridge might be kept dancing attendance upon the courts from sessions to sessions until some one grand jury may be induced to approve it.”

In Pittsburg, etc., Railroad Co. v. Lawrence County, 198 Pa. 1, the present Chief Justice announced the rule in the following language: “ But in the .present case there never was any approval by the commissioners nor even any attempt to approve until too late. The statute contemplates a proceeding at least reasonably continuous. A break of seven years and a half and then precipitate action by new officers is Clearly unreasonable. All.parties interested might fairly have inferred that the enterprise had been abandoned.”

In these cases it was held that it is not only necessary to have the concurrence of the grand jury, the court and the county commissioners, but the concurrence of all three bodies must be reasonably .continuous. In the latter case a break of seven and one-half years in the concurrence of the different bodies was said not to be reasonably continuous, within the requirements of the statute. In the case at bar there is a break of from March 25, 1897, when the petition was filed, until April 2, 1901, when the concurrence of the county commissioners was secured. In other words, there was a break from the beginning to the end of the proceeding of more than four years. In view of these facts the .court below held that the concurrence of the different bodies had not been reasonably continuous and refused to award a peremptory writ of mandamus as prayed for. The ruling of the court was clearly right even on the record as it stands. The necessity which existed for the building of the bridge as reported by the viewers in 1897, and approved by the grand jury a few months later may not have existed four years later when it was approved by the court and the county commissioners. The delay, and the fact that new county officials had been elected to and were in office at that time, notice not having been given to the taxpayers and other interested parties is not a reasonable compliance with the act of assembly. The proceedings were not reasonably continuous within the provision of the act and the rule of law announced in our cases.

In addition, however, the return sets out that the report of the viewers, with the concurrence of the grand jury indorsed thereon, had been presented to a former board of commissioners for concurrence, and that said board had refused to concur. If this refusal had been indorsed on the report or had been placed of record on the minutes of the board of commissioners, it would have been an end of the proceeding. Can the fact be established by parol testimony dehors the record ? We think it can. Inasmuch as the petitioners demurred to the return, this fact must be taken as admitted and therefore established for the purposes of this case. It is fatal to the proceedings and the mandamus cannot be maintained.

Our attention has been called to the cáse of York County v. Smyser, 72 Pa. 24, wherein it was held that mandamus would lie to compel the commissioners to build a bridge twelve years after it had been entered of record as a county bridge. It cannot be doubted that mandamus will lie to compel a board of county commissioners to perform their duty, and that if all the requirements of the act of assembly and rules of law applicable thereto have been met and the bridge properly entered as a county bridge, and the commissioners arbitrarily or unreasonably delay the construction of the same, mandamus will lie to compel them to perform their duty. In York County v. Smyser, supra, it was admitted that the proceedings under the act of assembly had been regular and that the bridge was properly entered of record as a county bridge. It is therefore not an authority under the facts of the present case. The irregularity of the proceedings by which it was attempted to make this a county bridge, and the fact that one body had refused to concur, is set up in the return and relied upon by the appellees to defeat the application for a mandamus. If in this case the report of the viewers had been made, and the concurrence of the grand jury, the court and the county commissioners had been reasonably continuous, and if it did not appear as a fact that a former board of county commissioners had refused to concur in the report, mandamus would lie to compel the performance of the duty. Under the facts of this case,, ho we ver, the court below was clearly right in refusing to award the peremptory writ of mandamus.

Decree affirmed.


author: Mb. Justice Elkin,

text:
    Plankinton’s Estate.

      Mortgage—Assignment—Confidential relation—Evidence—Auditor’s finding of fact.

    Where an old woman, physically infirm and mentally weak, assigns a mortgage to a person who stands to her in a close and confidential relation, the assignee is bound to show not only that the assignment as a gift was righteous and conscientious, but also that the assignor had acted intelligently, deliberately and freely with full information of the amount of her property, the effect upon her estate, the nature of the assignment, the effect thereof and that no advantage was taken of the confidential relation.
    An auditor’s findings of fact that the assignee did not meet the above measure of proof, and that he accepted the mortgage in the character of trustee to prevent the assignor from giving it away, to some one else to her prejudice, when such finding is sustained by the court below, will not be reversed unless manifest error is made to appear.
    Mitchell, C. J., and Fell, J., dissent.
    Argued Feb. 6, 1905.
    Appeal, No. 164, Jan. T., 1904, by Samuel Sinclair, from decree of O. C. Chester Co., dismissing exceptions to auditor’s report in Estate of Rebecca Plankinton, deceased.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to report of A. P. Reid, Esq., auditor.
    In addition to the facts stated in the opinion of the Supreme Court it appeared that Samuel Sinclair was a nephew of Rebecca Plankinton, and that for many years he had attended to her business affairs. Sinclair claimed that the mortgage had been assigned to him by the decedent as a gift and not as compensation for services. The auditor surcharged Samuel Sinclair as executor with the amount of the mortgage.
    Exceptions to the auditor’s report were dismissed by the court.
    . Errors assigned were in dismissing exceptions to auditor’s report.

      John G. Johnson, with him J. Qarroll Hayes and William M. Hayes, for appellant,
    cited: Roberts v. Clemens, 202 Pa. 198; Herster v. Herster, 122 Pa. 239; Pensyl’s Estate, 157 Pa. 465; Logan’s Est., 195 Pa. 282; Friend’s Est., 198 Pa. 363; Crothers v. Crothers, 149 Pa. 201; Yeakel v. McAtee, 156 Pa. 600; Sawyer v. White, 122 Fed. Repr. 223; Coleman’s Est., 193 Pa. 605; Carney v. Carney, 196 Pa. 34; Nace v. Boyer, 30 Pa. 99.

      George B. Johnson, with him Samuel B. Ramsey, for appellee,
    cited: Greenfield’s Est., 14 Pa. 489; Russell’s App., 75 Pa. 269; Miskey’s App., 107 Pa. 611; Worrall’s App., 110 Pa. 349; Shea’s App., 121 Pa. 302; Stewart’s Est., 137 Pa. 175; Smith v. Loafman, 145 Pa. 628; Darlington’s Estate, 147 Pa. 624.
    May 22, 1905:
   Opinion by

Mb. Justice Elkin,

That a confidential relationship between the donor, the decedent whose estate is the subject-matter of distribution, and the donee, the executor and accountant, existed for a period of thirty-five years or more, is found as a fact by the auditor, is justified by the testimony, and is not seriously controverted by the appellant. The auditor further found as a fact, and properly so under the evidence, that the donor, an old lady, at the time of the alleged gift of assignment, was physically infirm and mentally weak. Under these circumstances, the burden was on the appellant to show by sufficient affirmative evidence not only that the assignment of the mortgage by the donor to him as a gift was righteous and conscientious, but that Rebecca Plankinton had acted intelligently, deliberately and freely, with full information of the amount of her property, the effect upon her estate, the nature of the assignment, the effect thereof, and that no advantage was taken of the confidential relation. This is the settled rule of our cases : Greenfield’s Estate, 14 Pa. 489; Russell’s Appeal, 75 Pa. 269; Miskey’s Appeal, 107 Pa. 611; Worrall’s Appeal, 110 Pa. 349; Shea’s Appeal, 121 Pa. 302; Stewart’s Estate, 137 Pa. 175; Smith v. Loafman, 145 Pa. 628; Darlington’s Estate, 147 Pa. 624. Did the proof meet these requirements ? The learned auditor who heard the witnesses, observed their manner, viewed all the circumstances, considered not only the relations of the parties, but of the witnesses to the parties, found as a fact and stated as a conclusion of law that this measure of proof had not been met, and that the alleged gift could not be sustained. The court below confirmed the report of the auditor without filing an opinion. This appeal is therefore before us with the facts passed on, not by a jury but by an auditor and judge, whose findings must be accepted as conclusively established unless manifest error is apparent: Huckestein v. Kaufman, 173 Pa. 199; Morgan’s Estate, 207 Pa. 519.

After a careful review of the evidence and a-consideration of the whole case we cannot say there was such manifest error as would justify a reversal of the decree entered by the court below. What this court said in Price’s Appeal, 54 Pa. 472, applies to this case with convincing force : “But the facts have been passed upon, not by a jury, but by an auditor and judge more competent than a jury, and in circumstances more favorable for weighing them correctly than surround us, and is not great deference due to their conclusions ? Can we say there was no evidence to lead rational minds to the conviction of a trust? Upon our avowed principles of judging can we say there was flagrant mistake in this finding ? All prima facie presumptions are in favor of the decree. Who alleges error must prove it. The auditor and the judge placed themselves upon all the circumstances, they overlooked none, they extenuated none, distorted none, and they wrote - down what the voice of those circumstances spoke to their ears. Where is the evidence that proves their mistake ? ”

The appellant did not treat the transaction as an absolute assignment of the mortgage to himself. Three months after the mortgage was assigned to him he collected the accrued interest thereon and deposited the same to the credit of the donor, just as he had done before the assignment was made. These facts strongly support the auditor wherein he says : “ He accepted the assignment from her in the character of trustee to prevent her in her enfeebled condition giving it away to someone else to her prejudice. This is the most reasonable conclusion of the whole matter.” It may be conceded that under the facts of this case different minds may reach different conclusions in an honest effort to weigh the evidence and determine correctly the issue involved. But this is not sufficient to reverse the deliberate and well-considered findings of fact by the learned auditor and court below, there being no manifest error.

Decree affirmed.

Mitchell, C. J., and Fell, J., dissent.


author: Mb. Justice Mestbezat,

text:
    National Bank of Brunswick v. Sixth National Bank, Appellant.

      Banks and banking—Guaranty—Draft.

    A national bank has no power or authority to become a mere accommodation indorser or guarantor of the payment of the debt of another' without benefit to itself. ,
    The cashier of a national bank cannot bind the bank to pay the draft of a third person drawn on one of its customers, where it appears from the correspondence and the conduct of the parties and the existing circumstances, that it was not the intention of the bank to purchase the draft but merely to guarantee it.
    Argued Jan. 26, 1905.
    Reargued May 11, 1905.
    Appeal, No. 349, Jan. T., 1904, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1902, No. 2265, on verdict for plaintiff in case of National Bank of Brunswick v. Sixth National Bank.
    Before Mitchell, C. J., Dean, Fell, Bbown, Mestbezat, Potteb and Elkin, JJ., on reargument.
    Reversed.
    Assumpsit on a promise to accept drafts drawn on a third person. Before Finletteb, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned among others were in admitting in evidence letters of June 17, 1902 and various drafts, in refusing binding instructions for defendant, and in entering judgment for the plaintiff on (he point of law reserved.

      Henry P. Brown, with him John Dickey, Jr., for appellant.
    A national bank has no power to guarantee the draft of a third person on one of its customers, to be drawn on a future day: Bowen v. Needles Nat. Bank, 94 Fed. Repr. 925; Seligman v. Bank, 3 Hughes, 647; Johnston Bros. v. Bank, 3 Hughes, 657; Flannagan v. California Nat. Bank, 56 Fed. Repr. 959; Commercial Nat. Bank v. Pirie, 82 Fed. Repr. 799; Fowler v. Scully, 72 Pa. 456; First Nat. Bank of Moscow v. American Nat. Bank, 173 Mo. 153 (72 S. W. Repr. 1059).
    A national bank has power to purchase paper by way of discount: Danforth v. Nat. State Bank of Elizabeth, 48 Fed. Repr. 271.

      H. B. O-ill, with him John B. Bead, .Silas W. Pettit and Louis B. Bunk, for appellee.
    It is submitted that the meaning of the words “ we will accept ” in the letter of the defendant bank was an agreement to take and pay for the drafts. The meaning is to be derived from the subject-matter to which the words are applied: Woodward v. Grain Commission Co., 43 Minn. 260 (45 N. W. Repr. 433); Espy v. First Nat. Bank, 85 U. S. 604; Boyce v. Edwards, 29 U. S. 111.
    Authority to a bank to discount evidences of debt includes authority to buy: Atlantic State Bank v. Savery, 82 New York, 291; Tracy v. Talmage, 18 Barbour, 456; Fleckner v. U. S. Bank, 21 U. S. 338; Bank v. Sherburne, 14 Ill. App. 566; Brown v. Nat. State Bank, 3 U. S. App. 7; First Nat. Bank v. Harris, 108 Mass. 514.
    May 22, 1905:
   Opinion by

Mb. Justice Mestbezat,

Brown & Company were dealers in melons in the state of Georgia. J. F. Eilenberg was a produce dealer in the city of Philadelphia. Under date of June 17, 1902, the cashier of the Sixth National Bank of Philadelphia, the defendant, wrote the National Bank of Brunswick, Georgia, the plaintiff, as follows : “ Gentlemen: We will accept drafts drawn, on J. F. Eilenberg by Brown & Company for watermelons and cantaloupes, melons not to exceed $100 per car and cantaloupes not to exceed $500 per car, bills of lading attached, until further notice.” In reply to this communication, on June 20, the cashier of the National Bank of Brunswick wrote the following letter : “ Gentlemen: We beg to own receipt of your valued favor of the 17th inst., guaranteeing drafts to be made by Brown & Company, on J. F. Eilenberg against bills of lading for watermelons and cantaloupes at the rate of $100 per car for the former and $500 per car for the latter. Please advise whether or not bills of lading are to be ‘ to order ’ and whether the rate named includes prepaid frieghts.” On June 23, the defendant bank by its cashier wired the plaintiff bank that the drafts were not to be to order and that the rate named did not include prepaid freight. The receipt of this message was acknowledged by the cashier of the National Bank of Brunswick by a letter, dated June 21, as follows: “ Dear Sir: We are in receipt of your telegram of this date and in negotiating drafts drawn on Mr. J. F. Eilenberg by Messrs. Brown & Company will be governed accordingly.”

Subsequent and pursuant to these communications, Brown & Company drew nine sight drafts for different amounts addressed to J. F. Eilenberg, care of the Sixth National Bank, Philadelphia, Pa., in favor of the National Bank of Brunswick, Georgia, noting thereon the number of the car and that it was for melons. There was attached to each draft a bill of lading for a car load of melons. The first of these drafts was dated June 26, 1902, the last, July 3, 1902. When the drafts were received by the National Bank of Brunswick, they were, by agreement between the bank and Brown & Company, to be placed to the credit of Cave & Company, depositors in the bank, in their account. The credit was to be given at the time the drafts were delivered to the bank. The first two drafts were sent by the plaintiff to the Merchants’ National Bank of Philadelphia, its Philadelphia correspondent, and were duly paid. On July 1, the plaintiff bank received from Brown & Company two drafts and credited them to Cave & Company. On the same day, but after banking hours, it received another draft, and on July 2, placed it to the credit of Cave'& Company. 'On July 3, the plaintiff received from Brown & Company a draft and gave Cave & Company credit for it on the same day. On that day, the plaintiff also received three other drafts after banking hours and placed them to the credit of Cave & Company on July 5, the next succeeding business day. No credit was given Brown & Company for the drafts drawn by them, and the credit given Cave & Company was the consideration paid by the plaintiff bank for the drafts. The seven unpaid drafts were sent by the plaintiff to its Philadelphia correspondent and payment was refused, both by Eilenberg and the defendant bank. The plaintiff first learned of the nonpayment of the two drafts received by it on July 1, late in the afternoon of July 3 by a telegram from its Philadelphia correspondent; and through the same source it was first advised of the nonpayment of the other drafts on July 5.

Late in the afternoon of July 3., and subsequent to the receipt by the plaintiff bank of all the drafts drawn by Brown & Company, but before credit had been given on the books of the bank for three of the drafts, the plaintiff received from the defendant the following telegram:

“ Philadelphia, July 3,1902.

“ Bank oe Brunswick, Brunswick, Ga.:

“We revoke order to pay drafts to Eilenberg by Brown & Co., per ours of 6/17th.

“ Sixth National Bank of Philadelphia,

“Daniel Baird,

“ Cashier.”

This action is assumpsit and was brought to recover the amount of the unpaid drafts and the accrued interest. The statement avers that on the faith of the agreement made by the correspondence between it and -the defendant, and prior to the telegraphic cancellation of that agreement, it purchased the drafts with the bills of lading attached; that .they were presented to J. F. Eilenberg and payment was refused, and that subsequently the defendant bank, on demand, also declined payment. On the trial of the cause, the learned judge instructed the jury to find a verdict for the plaintiff for the amount of all the drafts, “ subject to the point of law reserved that if hereafter the court should be of the opinion that a cashier of a national bank cannot bind the bank to pay the draft of a third person drawn on one of its customers, to be drawn at a future day, the court will have the right to enter judgment for the defendant non obstante veredicto.” Subsequently, the court entered judgment for the plaintiff on the question of law reserved. The defendant has taken this appeal.

The defense set up to defeat a recovery in this action is, as stated in the printed brief of appellant’s counsel, “ that a national bank has no power to guarantee the draft of a third person on one of its customers, to be drawn on a future day; that such guaranty is ultra vires, and no action will lie against the bank for its refusal to pay such, a draft, in the absence of evidence to show that the bank received the fruits of the transaction.” To this^ proposition the plaintiff replies that the agreement between the parties was not a guaranty of the payment of the drafts to be drawn by a third person on one of its customers, but a contract to purchase the drafts ; and that, therefore, the agreement between the parties was not ultra vires the defendant bank.

In determining whether the transaction between the plaintiff and defendant was a guaranty or a purchase of the drafts in suit, recourse must be had, not only to the written communications which passed between the parties, but also to the acts of the parties and the circumstances surrounding the transaction. The language of the letters and telegrams does not clearly disclose the intention of the parties. When, however, it is read in the light thrown upon it by the conduct of the parties and the existing circumstances, the conclusion we think is irresistible that both parties regarded the contract entered into by them as one of guaranty and not of purchase. The initiatory letter came from the defendant bank on June 17, 1902, and shows that the drafts were to be drawn by Brown & Company, on Eilenberg for melons purchased by the drawee of the drawers. The name of the payee is not mentioned, nor does the evidence disclose who the payee was to be or what negotiations took place between .the parties prior to the date of the letter. It is drafts of this character that the defendant agreed to “ accept.” Had the drafts been drawn on the defendant bank and it had agreed to pay them, its liability would be unquestioned. The defendant, however, was not to be the drawee in the drafts, and hence by the use of the word “ accept ” the defendant could not have been regarded by the parties as assuming the liability of an ordinary acceptor of a draft or bill of exchange. This leaves the undertaking of the defendant bank, as disclosed by the letter, uncertain and unintelligible, requiring explanation dehors the paper. It received no consideration for its contract. Immediately following and acknowledging the receipt of the defendant’s communication, we have the letter of the plaintiff bank which discloses its interpretation of the defendant’s agreement. It construes the defendant’s contract as “ guaranteeing drafts to be made by Brown & Company, on J. F. Eilenberg against bills of lading for watermelons and cantaloupes at the rate of $100 per car for the former and $500 per car for the latter.” This language is clear of doubt, and the term used by the writer in designating the character of the defendant’s undertaking, unlike that employed by the defendant bank for the same purpose, leaves no uncertainty as to the liability which the plaintiff thought the defendant had assumed by its communication of June 17. As thus interpreted, the defendant’s contract was a guaranty of the payment of the drafts by Eilenberg to be drawn on him by Brown & Company, in payment for the melons. So far as the evidence discloses, no other or different interpretation was subsequently placed on the contract by either party until after this action had been brought. On the contrary, the acts of the parties were all confirmatory of this construction of the agreement. As appears by the testimony of the plaintiff’s cashier, the first two drafts, drawn in pursuance pf the agreement between the parties, were sent by the plaintiff bank to the Merchants’ National Bank, its Philadelphia correspondent, and paid in that city. The testimony does not show who paid the drafts, but as Eilenberg rvas the drawee and payer and resides in Philadelphia, it must, be assumed that they were presented to and paid by him. When the drafts in suit were drawn and received by .the plaintiff bank, it pursued the same course and sent them to its Philadelphia correspondent. They were first presented to Eilenberg, who refused to accept or pay them and they were protested. It was not until Eilenberg had declined to honor them that they were presented for payment to the defendant bank. This course of óonduct on the part of the plaintiff with regard to each of the several drafts leads to but one conclusion, and. that is, that it regarded the defendant as secondarily liable on the drafts. It is plainly and clearly contradictory of the theory that the defendant was to be considered as having purchased the drafts and thereby to have assumed a primary liability for their payment. If that was the theory of the plaintiff and that was the interpretation of the contract, why did it first present the drafts to Eilenberg, the drawee, for payment ? Why was he not ignored in the transaction and payment demanded of the defendant in the first instance ?

As further evidence of a like construction by the plaintiff of defendant’s agreement, it will be observed that in each instance when the plaintiff transmitted the drafts to the Merchants’ National Bank of Philadelphia for collection it gave in its letter the names of the drawers of the drafts and stated that Eilenberg was the payer. No reference whatever was made in these communications to the defendant bank or to its liability to pay the drafts. Again, during the trial of the cause, the plaintiff’s counsel made an offer, which was rejected, to show that at the date of the letter of June 17, the defendant had in its possession as a depositary of J. E. Eilenberg, the drawee, upwards of $10,000. This testimony would only be admissible on the theory that the defendant’s liability was that of a surety or guarantor, and the offer, therefore, supports the contention that such was the purpose of the defendant’s contract.

We are of opinion that the liability of the defendant bank was that of guarantor and not as purchaser of the drafts. It is conceded by the plaintiff “that the weight of authority is in favor of the position that a national bank has no power or authority to become a mere accommodation indorser or guarantor of the payment of the debt of another without benefit to itself.” So far as we are advised, the question has not been determined by the supreme court of the United States, but the inferior courts of that jurisdiction have uniformly put this construction on the powers of a bank chartered under the national banking act, and as the subject is one of federal origin and of federal control, we must follow those precedents : Fowler v. Scully, 72 Pa. 456. We, therefore, hold that the contract on which this suit was brought was ultra vires the defendant bank, and that tbe court erred in entering judgment for tbe plaintiff.

The judgment of the court below is reversed, and judgment is now entered on the reserved question for the defendant non obstante veredicto.