author: Mr. Justice Mestrezat,

text:
    Africa et al., Appellants, v. Trexler.

      Evidence — Competency of witness — Death of one party in interest— Ejectment — Defendant—Disclaimer—Act of May £3, 1887, P. L. 169— Treasurer’s deed — Proffer of taxes — Declarations—Party not in interest.

    1.- A codefendant in an action of ejectment who is called as a witness and complies with the conditions imposed by clause e, sec. 5, of the Act of May 23,1887, P. L. 159, by filing a disclaimer and securing the costs, is relieved from the disability imposed upon a surviving party having an interest adverse to that of a deceased party. The competency of such a witness does not depend upon his interest in the subject in controversy, but whether he has complied with the requirements of the act.
    2. Where an owner of unseated land calls upon the county treasurer, inquires for the taxes due on the land, and pays all the taxes demanded of him by the treasurer, he does all that is necessary to discharge the land from liability to sale, and a subsequent sale of the land for taxes which the treasurer omitted to demand passes no title.
    3. A treasurer’s deed does not give purchasers at a tax sale constructive possession of the premises sold where the sale was wholly void.
    4. The acceptance of service by defendant’s counsel in an action of ejectment is in effect the same as if the defendant had been personally served by the sheriff, and is therefore prima facie evidence of the defendant’s possession of the premises in dispute.
    5. In an action of ejectment one of the defendants, formerly owner of an undivided half interest in the premises, was permitted to withdraw his plea of “not guilty” and to file a disclaimer of title and a bond to secure the payment of costs. It appeared that he had previously conveyed his undivided half interest in the premises to the other defendant by a general warranty deed. On the trial the plaintiffs showed title out of the commonwealth, the assessment and levy of taxes on the land in dispute, the return for the nonpayment of the taxes, and the subsequent sale and delivery of the treasurer’s deed to one of the plaintiffs and to the predecessor in title of the others. The defendant, who was prima facie in possession, for the purpose of invalidating the treasurer’s deed, called the person who had disclaimed, and who testified under objection, that previous to the tax sale he had called at the office of the county treasurer and asked for the taxes due upon the land in dispute, which was then owned by himself and defendant; that the treasurer furnished him the amount which he said was due for taxes on this land, and that the witness then gave the treasurer a check for the money which he demanded. Plaintiffs contended that the witness was adversely interested by reason of the fact that in the event of a recovery by the plaintiffs he would be liable on his clause of general warranty in its conveyance to the defendant and was incompetent to testify by reason of the death of one of the grantees under the treasurer’s deed, whose right or interest in the property had passed to his devisees who were on the record as plaintiffs. Held, that under the act of 1887 the witness was competent.
    6. In such a case the fact that the county treasurer was dead did not make the witness incompetent, as the treasurer was simply the agent and acting for the county, and his estate was not interested in the cause nor was it represented by any party to the record; nor could the plaintiffs show the declarations of the treasurer in regard to what took place between him and the witness, made to a stranger to the title, not in the latter’s presence, at a time subsequent to the interview at which the taxes were demanded and paid, such declarations being no part of the record, but simply ex parte and self-serving, and not admissible to contradict the witness’s testimony as to what had previously occurred between him and the treasurer.

      Deeds — Recitals—Conveyance to “company.”

    7. In an action of ejectment a deed in the chain of title of the defendant containing a recital disclosing the fact that the grantors had previously conveyed the premises to a certain American Stave & Timber Company was admitted in evidence under objection. There was nothing in the record to show that this company was incorporated, or, aside from the recitals in the deed, whether it was a partnership or an incorporated association. Held, that this recited conveyance did not vest the legal title to the land therein described in the company, because it had had no such legal existence as would entitle it to be a grantee in a deed of real estate; and that the subsequent deed was properly admitted in evidence.
    Argued April 18, 1911.
    Appeal, No. 297, Jan. T., 1910, by plaintiffs, from judgment of C. P. Huntingdon Co., Sept. T„ 1908, No. 11, on verdict for defendants in case of J. Murray Africa, and B. P. Africa, Walter G. Africa and J. Murray Africa, executors and devisees under the last will and testament of J. Simpson Africa, deceased, v. J. F. Trexler.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Ejectment for a tract of unseated land in Walker township. Before Woods, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial when John L. Trexler, a witness called on behalf of defendant, was sworn, defendant made this offer:
    Mr. Waite: I propose to prove now by the witness that about June 1, 1898, he received a communication from Huntingdon to the effect that the William Smith tract and the John Patton tract, the last named being the one involved in this issue, were advertised for sale by the treasurer of Huntingdon county; that in pursuance of that notice he came to Huntingdon on June 2, 1898; that he went from the station to the office of the county commissioners in Huntingdon county and inquired about the taxes which were assessed to the two above named tracts of land, in which he was at that time interested, and that he was directed to the office of the county treasurer and that Peter Kean, one of the then commissioners of the county of Huntingdon, went with him to the office of the county treasurer, and that he asked the county treasurer for all the taxes that were due upon the William Smith tract in Porter township and the John Patton tract in Walker township, and that the county treasurer took down a book and, after some little time, handed the witness the amount of taxes which were due upon these lands, and that the witness then gave a check to the county treasurer for. the amount of money which the county treasurer demanded; that the witness then left the office of the county treasurer, believing that , he had paid all the taxes that were assessed against these two tracts of land, including the one involved in this issue; this for the purpose of showing that the witness made an honest effort to pay all the taxes that were assessed upon this land.
    Mr. Bailey: Counsel for plaintiffs object to the testimony proposed from the witness for the following reasons:—
    1. That having been a tenant in common with Jacob F. Trexler, the now defendant, the witness would be incompetent to testify in support of his former cotenant’s title to the land in question, for the reason that the other party to the thing in action, J. Simpson Africa, died in 1900, and his rights upon the record have passed by his will to the plaintiffs in this action who stand as his representatives; by the death of J. Simpson Africa, both Jacob F. Trexler and John L. Trexler were rendered incompetent to testify adversely to his estate, under the Act of May 23, 1887, P. L. 158, as to anything which occurred during the lifetime of the' decedent who died, according to the testimony in this case, in the year 1900, and the occurrence to which the recollection of the witness is directed took place in 1898; the witness is incompetent for the reason that the result of his testimony would be not only adverse to the estate of J. Simpson Africa and to these plaintiffs but might result in injury to the title of that estate to the locus in' quo.
    2. The witness is incompetent even though he conveyed his estate in these lands by deed just offered in evidence by the defendant, dated January 25, 1905; for .the reason that the said deed contains a covenant of general warranty which is still in force against the witness; if he is permitted to testify to the matter contained in the defendant’s offer he will be testifying adversely to the estate of J. Simpson Africa in a matter which would directly affect the estate of J. Simpson Africa, and in a matter in which he is personally interested as against the estate of J. Simpson Africa, namely, in the support of his own covenant of warranty and against the estate of J. Simpson Africa, on their tax title.
    3. The witness would be incompetent even if his deed contains no covenant of warranty whatever for the reason that a release of his interest, which would result in making him competent, must be the extinguishment of that interest and a disclaimer of title; by the conveyance put in evidence by the defendant the title of John L. Trexler or claim of John L. Trexler to the locus in quo was not extinguished or disclaimed, but passed still in existence and in full force to his cotenant, Jacob F. Trexler, the defendant.
    4. The testimony is generally incompetent, irrelevant, immaterial and inadmissible and the witness incompetent under the act of 1887.
    The Court. We will allow the evidence to be received for the present. Objection overruled. Bill of exceptions sealed for plaintiffs. [9]

      Errors assigned were (1) refusing binding instructions for defendant; (5) in refusing to enter judgment n. o. v.-; (2, 3, 4, 7, 8, 9,) rulings on evidence.

      Jas. S. Woods and T. F. Bailey, with them W. H. Woods, for appellants.
    — John F. Trexler is interested adversely to •the estate of the decedent by reason of his liability on his warranty and is therefore an incompetent witness: Rudolph v. Rudolph, 17 Pa. Superior Ct. 558.

      H. H. Waite, with him C. C. Brewster, for appellee.
    The witness complied with the provisions of the act, and he had no interest in the result of the suit. That he might be sued on his warranty is a mere contingency and only goes to affect the credibility of the witness: Dickson v. McGraw, 151 Pa. 98; Tarr v. Robinson, 158 Pa. 60.
    July 6, 1911:
   Opinion by

Mr. Justice Mestrezat,

This is an action of ejectment brought by J. Murray Africa, and B. F. Africa, Walter G. Africa and J. Murray Africa, executors and devisees under the last will and testament of J. Simpson Africa, deceased, against John L. Trexler and Jacob F. Trexler to recover the possession of a tract of unseated land situate in Walker township, Huntingdon county, containing about 437 acres. The praecipe was filed June 22, 1908, and on the same day counsel for the defendants appeared and waived the issuance and service of the writ upon their clients. Both parties filed abstracts of title. When the case was called for trial on February 9, 1909, John L. Trexler, one of the defendants, was permitted to withdraw his plea of not guilty and to file a disclaimer “of all title or claim of title or of possession to the premises described in the writ, .... and that he had neither title or possession of said lands at the time said suit was brought.” He also filed a bond to secure the payment of the accrued costs.

On the trial of the cause the plaintiffs showed title out of the commonwealth, the assessment and levy of taxes for the years 1895 and 1896 on the lands in dispute, the return for nonpayment of the taxes, the subsequent sale and delivery of the treasurer’s deed to J. Simpson Africa and J. Murray Africa, and then rested.

The defendant, Jacob F. Trexler, introduced the records tending to show a complete legal title from the commonwealth down through the several mesne conveyances to himself. In the chain of his title was a deed from one Levi L. Fritch and Sarah, his wife, to John L. Trexler and Jacob F. Trexler which contained a recital disclosing the fact that the grantors had previously conveyed the premises to the American Stave & Lumber Company. The deed was admitted under objection, and an exception, was noted. John L. Trexler conveyed his undivided one-half interest in the premises to Jacob F. Trexler by deed dated January 25, 1905, and recorded March 8, 1909.

The deed of Fritch and wife to the Trexlers was properly admitted in evidence. There is nothing in the record to show that the American Stave & Lumber Company was incorporated, or, aside from the recital in the deed, whether it was a partnership or an unincorporated association, and, therefore, no title passed from Fritch and wife by the deed of August 4, 1894: Burns v. McCabe, 72 Pa. 309; Jackson v. Sisson, 2 Johns. Cas. (N. Y.) 321. The Superior Court correctly disposed of this question in the following language of its opinion in Trexler v. Africa, 42 Pa. Superior Ct. 542, 547: “It does not appear in the record that the American Stave & Lumber Company was a corporation. It must, therefore, have been a partnership name or a fictitious name, and under the above quoted authority, the conveyance by Fritch and wife by the deed of August 4, 1894, to the American Stave & Lumber Company did not vest the legal title to the land therein described in that company, because it had no such legal existence as would entitle it to be a grantee in a deed of real estate. This left the legal title still in Fritch and wife, and their subsequent deed of September 13, 1899, to the plaintiffs (Jacob F. Trexler and John L. Trexler), vested the legal title in the latter . . . .: Enterprise Transit Co. v. Hazelwood Oil Co., 20 Pa. Superior Ct. 127; Wilkinson v. Connell, 158 Pa. 126. We need not discuss the question whether the deed to the American Stave & Lumber Company vested an equitable title in that company, because there is no one in possession of the locus in quo claiming under such title, and if is not the rule of law that an equitable title authorizes the holder of it to go into possession of land without additional authority to take possession.”

For the purpose of invalidating the treasurer’s deed and thereby defeating the plaintiffs’ title, the defendant called John L. Trexler as a witness, and offered to prove by him that on June 2, 1898, he called at the office of the county treasurer and asked him for the taxes due upon the William Smith tract and the John Patton tract of land (the latter being the land in dispute), which were then owned by himself and the defendant, that the treasurer furnished him the amount which he said was due for taxes on these lands, and that the witness then gave the treasurer a check for the money he demanded. The plaintiffs objected to the testimony on the ground that the witness was incompetent to testify by reason of the death of J. Simpson Africa whose right or interest in the property had passed to his devisees who were on the record as plaintiffs. The court overruled the objection and permitted the witness to testify. This raises the important question in the case.

The acceptance of service by the defendant’s counsel was in effect the same as if the defendant had been personally-served by the sheriff: Act of July 9, 1901, sec. 1, clause 14, P. L. 614, 1 Purd. 242, "and was, therefore, prima facie evidence of the defendant’s possession of the premises in dispute: Kirkland v. Thompson, 51 Pa. 216.' The defendant had the right to attack the validity of the treasurer’s deed: Miller v. McCollough, 104 Pa. 624. If, as alleged by him and offered to be shown by the witness, John L. Trexler, the latter called upon the treasurer, inquired for the taxes due on the land in dispute, and paid all the taxes demanded of him by the treasurer, he did all that was necessary to discharge the land from liability to sale, and the subsequent sale to the plaintiffs for taxes omitted to be demanded passed no title: Dietrick and Wilson v. Mason, 57 Pa, 40; Breisch v. Coxe, 81 Pa. 336; Pottsville Lumber Co. v. Wells, 157 Pa. 5. This is undoubtedly the settled law of the state, and we do not know that the appellants controvert it. If, therefore, John L. Trexler was a competent witness and his testimony was believed by the jury, the treasurer’s sale was invalid and the deed did not vest the title to the premises in the plaintiffs.

By sec. 4 of the Act of May 23, 1887, P. L. 158, 4 Purd. 5157, it is provided that no interest or policy of law shall make any person incompetent as a witness except as provided in sec. 5, of the act. Clause e, of sec. 5, is the only one having any relevancy to the question in hand, and it provides as follows: “Nor where any party to a thing or contract in action is dead, .... and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record, who represents his interest in the subject in controversy, shall any surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the said right of such deceased. . . . party, be a competent witness to any matter occurring before the death of said party .... unless the action be ejectment against several defendants, and one or more of said defendants disclaims of record any title to the premises in controversy at the- time the suit was brought, and also pays into court the costs accrued at the time of his disclaimer, or gives security therefor, as the court in its discretion may direct, in which case such disclaiming defendant shall be a fully competent witness.”

The plaintiffs contend that John L. Trexler is interested in the result of the case, and that his interest is adverse to the estate of J. Simpson Africa, deceased. This interest, it is claimed, arises from the fact that in the event of a recovery by the plaintiffs against'Jacob F. Trexler, John L. Trexler will' be liable to his brother upon the clause of general warranty in the deed conveying his undivided interest in the land to his brother. It is, therefore, contended that John L. Trexler is interested adversely to the estate of the decedent whose representatives are plaintiffs, and that the witness is incompetent under clause e, of sec. 5, of the act above referred to. We think it manifest that this contention is not supported by the clause of the act in question. If it be conceded that John L. Trexler would be liable on his warranty if the plaintiffs recovered a judgment against the defendant and that, therefore, he is interested adversely to the right of the deceased party represented on the record by the plaintiffs, it would not necessarily follow that he was disqualified to testify under clause e, of sec. 5. The right of the witness to testify does not depend upon his interest in the question at issue. As we have seen, the act makes all persons competent witnesses with the exceptions noted in sec. 5. One of those exceptions denies the right of a surviving party to testify to any matter occurring before the death of the other party where the latter’s interest in the subject in controversy has passed to a party on the record who represents his interest. That part of the exception might exclude John L. Trexler as a witness by reason of his liability on his warranty, which might be construed as an interest adverse to the right of the deceased in the premises in dispute. We need not, however, determine whether such interest would disqualify the witness, as it becomes unnecessary under the other part of clause e, which is quoted above. That part of the clause furnishes, as it were, an exception to the exception contained in the earlier part of the clause disqualifying a witness on the ground of an interest adverse to that of the deceased party. It relieves the witness from disqualification in actions of ejectment where he files a disclaimer and secures the payment of the accrued costs. In other words, when a codefendant in an action of ejectment is called as a witness and complies with the conditions imposed by this clause by filing a disclaimer and securing the cost he is relieved from the disability imposed upon a surviving party having an interest adverse to that of the deceased party. Such witness in an ejectment suit occupies the same position as if the clause had no existence, and becomes a competent witness under sec. 4, of the statute. The competency of such a witness does not depend upon his interest in the subject in controversy, but whether he has filed a disclaimer and has paid or secured the payment of the costs which have accrued in the action. The wisdom of this provision we may not question; that was solely for the legislature, and its command must be obeyed. It follows that John L. Trexler having filed his disclaimer and secured the costs was a competent witness to testify to what occurred between the witness and the county treasurer in regard to his effort to pay the taxes assessed against the land in dispute.

The finding of the jury invalidated the tax title, and, therefore, the plaintiffs could not recover. The defendant having made the proper effort to pay the taxes charged against the land in dispute, and having failed by reason of the improper act of the treasurer and by no fault of his own, the effect as to the legality of the purchasers’ title was the same as though the taxes had been actually paid. The sale was void and passed no title to the purchasers. The treasurer’s deed did not give them constructive possession of the premises, and the defendant could question its validity: Miller v. McCullough, 104 Pa. 624. The plaintiffs having no title to the premises are not in position to oust the defendant from his possession. The deed upon which they rely was absolutely void and conveyed no title or right to the possession.

The death of the county treasurer did not make John L. Trexler an incompetent witness. The treasurer was simply the agent and acting for the county, and his estate was not interested in the cause nor was it represented by any party on the record. It is equally apparent that the plaintiffs could not show the declarations of the treasurer in regard to what took place between him and John L. Trexler, and which were made at a time-subsequent to the interview with the treasurer at which the taxes were demanded and paid: Young v. Commonwealth, 28 Pa. 501; McGregor v. Sibley, 69 Pa. 388; Romig v. Romig, 2 Rawle, 241; McPeake v. Hutchinson, 5 S. & R. 295. Such declarations were no part of the res gestse, but simply ex parte or self-serving, and were not admissible to contradict Trexler’s testimony as to what had previously occurred between him and the treasurer. They were made to a stranger to the title, and not by an agent of the defendant nor in the latter’s presence, and hence, are not competent evidence to' affect the defendant’s title to the premises in dispute.

' ■ The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Isett v. Meehan, Appellant.

      Deed — Reservation—Water rights — Mill race — Right to take water— Irreparable damages — Injunction—Equity—Suit against commonwealth.

    In 1906 there was conveyed by the plaintiff to the commonwealth, for use of the department of fisheries, a tract of land which included part of a certain creek and a race which left the creek at the breast of a dam and supplied power to plaintiff’s gristmill, located a short distance below the tract. In the conveyance there was the following, reservation: “And reserving further from this conveyance the right to the uninterrupted and perpetual flow of the water of Spruce creek into and through the said head race from the western course of Spruce creek to the Isett grist mill at Spruce creek of the same height, width, depth and capacity as now constructed, used and maintained, to furnish water and power to.said gristmill.” Upon this.land the state erected a fish hatchery plant. The plaintiff filed a bill averring that the commissioner of fisheries intended to divert the waters of the creek for purposes of the hatchery plant in violation of the reservation in the deed and to the irreparable injury of the plaintiff. It appeared by' the uncontradicted testimony of the defendant that his purpose was to take water from the stream only when it was running over the' top of the dam, under which conditions water sufficient to run the mill would continue to pass down the race. Held, (1) while the proceeding was against the fish commissioner in his official capacity, it was not to enjoin him from discharging any official duty imposed upon him by statute, but was to prevent his performing what is to be regarded as a merely ministerial duty under the general powers and discretion conferred upon him, and if in doing so he defied a covenant between the state and the appellee, he could not shield himself under the plea that the state was being sued; (2) that the defendant should be enjoined from diverting water from the creek only when the waters of the creek were not running over the top of the dam.
    Argued April 19, 1911.
    Appeal, No. 323, Jan. T., 1910, by defendants, from decree of C. P. Huntingdon Co., in equity, Dec. T., 1909, No. 159, granting injunction in case of Sidney T. Isett v. William E. Meehan, Commissioner of Fisheries, William E. Meehan, individually, William Hass, John Miller, William Miller, Scott Meyer, Jacob Harpster and Sidney Barrick.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Decree modified.
    , Bill in equity for an injunction. Before Woods, P. J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was decree of court’.

      John D. Dorris and William M. Hargest, assistant deputy attorney general, with them J. E. B. Cunningham, depüty attorney general, and John C. Bell, attorney general, for appellants.
    — The State had the right to use any portion of the waters of Spruce creek; that were.conveyed to her in the Isett deed, in supplying the natural wants of her fish hatchery: Filbert v. Dechert, 22 Pa. Superior Ct. 362.
    It is submitted that the exact question in this case was decided by this court in Conneaut Lake Ice Co. v. Quigley, 225 Pa. 605.
    The commonwealth of Pennsylvania cannot be. made a defendant in a suit in equity: Williamsport & Elmira R. R. Co. v. Com., 33 Pa. 288.

      Howard L. Henderson with him, H. H. Waite, for appellee.
    July 6, 1911:
   Opinion by

Mr. Justice Brown,

By deed dated January 29, 1906, Sidney T. Isett, the appellee, conveyed to the commonwealth, for the use of the department of fisheries, twenty-seven acres and twenty perches of land near the village of Spruce Creek, in Huntingdon county, the land conveyed including the stream of Spruce creek. On this land the state has erected a fish hatchery plant. A gristmill and dam of the appellee are located further down Spruce creek at a point about 200 feet from the southern line of the commonwealth’s property. The race for this mill leaves Spruce creek at the breast of the appellee’s dam and is included within the boundaries of the hatchery property for nearly its entire length. In the conveyance from the appellee to the commonwealth there is the following reservation: "And reserving further from this conveyance the right to the uninterrupted and perpetual flow of the water of Spruce creek into and through the said headrace from the western course of Spruce creek to the Isett gristmill at Spruce Creek of the same height, width, depth and capacity as now constructed, used and maintained, to furnish water and power to said gristmill.” The appellee filed his bill in the court below, averring that the commissioner of fisheries had directed the digging of trenches or ditches to connect the mill dam of the appellee and Spruce creek with a proposed feed mill on the hatchery plant for the purpose of operating that mill by water power, and that by so doing the said commissioner was violating the reservation in the deed and working irreparable injury to the appellee. The workmen under the commissioner were made defendants with him. The court below having found that what he proposed to do would, if carried out, divert a large quantity of water from the mill race which conveys the water to the complainant’s mill, and thereby seriously impair and work irreparable injury to the water power at the mill, awarded the injunction appealed from, which restrains and enjoins the appellants “from diverting any water from the stream of Spruce creek, by pipes, trenches, drains or otherwise, so that the same cannot pass into and through the race leading to the gristmill of the complainant or from doing any other act or acts whatsoever that would carry from said stream of Spruce creek any water that would otherwise pass down the stream to and through the mill race connected with the gristmill, or interfere in any way with the water power belonging to the complainant or doing any other act or acts whatsoever that would in any way injure or interfere with the water of the said stream of Spruce creek belonging to the complainant, and which is appurtenant to his said gristmill.”

This proceeding is not against the commonwealth, and Williamsport & Elmira Railroad Co. et al. v. Com. et al., 33 Pa. 288, is not authority for the contention of the appellant, that the bill ought to have been dismissed for want of jurisdiction in the court to entertain it. While it is against Meehan in his official capacity as fish commissioner, it is not to enjoin him from discharging any official duty imposed upon him by statute, but is to prevent his performing what is to be regarded as a mere ministerial duty under the general powers and discretion conferred upon him, and if in doing so he defies a covenant between the state and the appellee, he cannot shield himself under the plea that the state is being sued.

The manifest and sole purpose of the reservation was to preserve undiminished to the appellee the water power at his mill. The land which he conveyed to the commonwealth included so much of Spruce creek as runs through it, and on the banks of that stream, within the boundaries of the commonwealth’s land, the fish commissioner would divert the waters of the stream for the purpose of supplying a need of one of the state’s fish hatcheries. In doing so he did not propose to divert the water permanently from the creek, but, according to his testimony, intended to return it to the stream above the breast of the dam.. The return of the water, however, to the creek, whether above or below the dam, is not material in passing upon the right of the appellee to the sweeping injunction decreed by the court below.

The purpose of the reservation in the deed, as, already stated, was the preservation of the mill’s water power as it existed at the time the conveyance was made. The water was to continue to flow uninterruptedly and perpetually through the race as it was then constructed, “in height, width, depth and capacity,” “to furnish water and power” to the mill. Equity will not permit the purpose of the reservation to be defeated, and if, as a matter of fact, irreparable injury would result to the appellee, as he avers in his bill, by permitting the fish commissioner to do what he proposes to do, a chancellor will protect birn in his rights. On the other hand, if what the commissioner proposes to do, or what he ought to be'permitted to do, will not in any degree interfere with or impair the water power eonveyed to the mill through the race, the appellee will sustain no injury and the patent purpose of the reservation will'not be interfered with. So long as the water flows over the dam the power to run the mill passes down the race, and the purpose of the fish commis- ' sioner was to take water from the stream only when it was running over the top of the dam. This the court below ought to have found as a fact from Meehan’s uncontradicted testimony, and the further finding ought to have been that he did not intend to draw water from the stream when it was below a mark that he had ordered his superintendent to place at the head of the face. If the water is taken from the stream only when these conditions exist, how can it be said that the appellee will suffer any injury? Though the unimpaired water power passing down the race will continue to drive the wheels of his mill, he asks that the appellants be enjoined from doing that which can do no harm to him and will do good to the state, and he asks this because, he insists, it is so nominated in the bond'. Even the cold eye of the law cannot so read it, and equity surely will not so construe it. The court below properly found, upon the request of the appellants, that “the commonwealth has the right to the ordinary use of the water of Spruce Creek for the purpose of supplying the natural wants of her Spruce Creek hatchery, located on the lands purchased from the plaintiff, provided she does not violate the covenant in said deed with reference to the flow of water in the raceway;” but an inconsistent decree followed this finding, sustaining the contention of the appellee that the reservation prevents the use by the state of the waters of the stream above the breast of the dam under any conditions. That decree must be modified, and we do now modify it by ordering, adjudging and decreeing that the appellants are enjoined from diverting any water from the stream of Spruce creek by pipes, trenches, drains or otherwise only when the waters of the said creek are not running over the top of the dam, one-half of the costs below and on this appeal to be paid by the appellants and the remaining half by the appellee.


author: Per Curiam,

text:
    Yoder, Appellant, v. Cole.

      Trespass — Cause of action — Public policy — Privilege of witnesses.

    1. No civil action for damages can be maintained for alleged false testimony given on the witness stand. Public policy and the safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint excepting that imposed by the penalty for perjury.

      Practice, C. P. — Pleading—Plea in bar treated as a demurrer.

    2. A judgment entered for defendant in his plea in bar, which was treated as a demurrer to plaintiff’s statement without objection from the plaintiff, will not be disturbed because the plea was not disposed of according to the usual rules of pleading.
    Argued April 19, 1911.
    Appeal, No. 11, Jan. T., 1911, by plaintiff, from judgment of C. P. Clearfield Co., Sept.T., 1909, No. 228, for defendant, upon plea in bar in case of W. H. Yoder v. A. L. Cole.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass for damages. Before Holt, P. J.
    The cause of action averred by the plaintiff was that the defendant with intent to injure the plaintiff made false answers under oath to interrogatories addressed to himself as garnishee, and later gave false testimony as to the same matters on the witness stand in an action by the plaintiff against a third party. The defendant filed a plea in bar, denying the allegation in plaintiff’s statement and also denying that the legal effect of said allegations was to give the plaintiff a right of action.

      Error assigned was in sustaining defendant’s plea in ban

      W. C. Pentz, with him W. L. Calkins, for appellant.

      Smith V. Wilson, for appellee, not heard.
    July 6, 1911:
   Per Curiam,

The judgment for the defendant was on his plea in bar of the action. No question was raised to the form of the plea, and it was treated by the court below as a demurrer to the plaintiff’s statement. This, so far as we can gather from the record, was done without objection from the plaintiff, and the judgment will, therefore, not be disturbed because the plea was not disposed of according to the usual rules of pleading.

No precedent can be found for the action brought by the appellant, and the authorities are. uniform in holding that it cannot be maintained, many of. which are to be found in the opinion of the Supreme Court of North Carolina, in Godette v. Gaskill and the notes to said case, 24 L. R. A. (N. S.), 265. “It would multiply and extend litigation if the matter could be re-examined by a new action between a party to the action and a witness therein; and, more than that, witnesses would be intimidated if their testimony is given under liability of themselves being subjected to the expense and annoyance of being sued by any party to the action to whom their testimony might not be agreeable. It would give a great leverage to litigants to intimidate witnesses:” Clark, C. J., in Godette v. Gaskill, supra. “Public policy and the safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury:” Stevens v. Rowe, 59 N. H. 578.

Judgment affirmed.


author: Mr. Justice Potter,

text:
    Newingham v. The J. C. Blair Company, Appellant.

      Negligence — Owner of building — Workman employed on premises— Safe means of ingress — Stairways—Fire escape.

    1. It is the rule that the owner of property owes to an independent contractor and his servants at work thereon the duty of exercising reasonable care to have the premises in a safe condition for the work, unless the defects responsible"for the injury were known to the contractor. The owner is not charged with the absolute duty of having the premises safe; his duty is discharged by the exercise of reasonable care. All the authorities agree that it is incumbent upon the owner of premises upon which persons come by invitation, express or implied, to maintain such premises in a reasonably safe condition for the contemplated uses thereof and the purposes for which the invitation was extended.
    2. In an action for damages sustained by reason of a defect in the outside fire escape of defendant company’s building the case is for the jury and a verdict for plaintiff will be sustained where it appears that the plaintiff, a tinner and a roofer, was working on the building as the employee of a contractor who was engaged to copper flash the roof of the building; that there were three ways of gaining access to the roof, by elevator, by the inside stairway and by the fire escape; that shortly after the work began the vice president of the defendant company gave directions that the workmen should not go through the building but should use the fire escape to reach the roof; that the plaintiff in discharge of his duties had occasion to descend and while on the fire escape one of the platforms gave way beneath him and he fell and was injured; there being no evidence of any inspection of the fire escape, and one witness positively testifying that the accident was due to defective construction, which would have appeared had there been a proper examination or inspection: Hotchkin v. Erdrich, 214 Pa. 460, distinguished.
    ■ 3. In such a case proffers of proof are properly excluded as irrelevant and immaterial where the one goes no further than to show that the plaintiff was inside the building after the direction to use the fire escape and the other to show that the plaintiff’s employer had notice and intended to give warning of the dangerous character of the fire escape.
    4. The fact that the plaintiff used the elevator or stairway at times in disregard of orders did not affect his right to rely upon the fire escape being in a proper condition when he was ordered to use it.

      Negligence — Fire escape — Inspection—Presumptions—Act of May 2, 1905, sec. 22, P. L. 352.

    5. In an action against the owner of a building to recover damages for personal injuries resulting from an alleged defective fire escape, it will not be presumed, because the Act of May 2,1905, sec. 22, P. L. 352, provides for an inspection of fire escapes that defendant had complied with the law, where there is no evidence whatever of any such inspection, and there is positive proof that the accident would not have happened if there had been a proper inspection.

      Appeals — Assignments of error — Misquotation of testimony — Failure to instruct — Duty of counsel.

    ' 6. An alleged misquotation of testimony by the trial judge in his charge in a negligence case is not properly assignable for error where it was not brought to the court’s attention before the jury retired.
    7. In such a case the fact that the court failed to give the jury certain instructions, as for instance in guarding the effect of the Carlisle Tables as evidence by directing the jury’s attention to- the circumstances affecting the duration of the life in question, will not constitute reversible error where counsel fail to make any request upon trial for such instructions, or to call the court’s attention to the omission so to instruct.
    Argued April 19, 1911.
    Appeal, No. 54, Jan. T., 1911, by defendant from, judgment of C. P. Huntingdon Co., Feb. T., 1909, No. 4, on verdict for plaintiff in case of Frank E. Newingham v. The J. C. Blair Company.
    Before Brown, Mestrezat, Potter, Elkin .and Moschzisker, JJ.
    Affirmed.
    Trespass for personal injuries. Before Woods, P. J.
    The facts appear by the opinion of the Supreme Court.
    At the trial James Sleeman being on the stand was asked this question: “Q. Had you seen Newingham frequently in the building during the time this work was going on? ■ Objection.
    Mr. Bailey: We propose to show by the witness that the plaintiff was in the building “A” of the defendant a day or two before the accident, and subsequent to the Tuesday before the accident; for the purpose of showing that if there was any inhibition or restriction in his movements by an officer of the company, to wit: that he should not use the stairways or elevators in the building, that he did not obey those instructions and was inside of the building, and it comes to the question of his exercising due care in leaving a safe way of departure from the building and going on the fire escape where he was injured; and also for the purpose of affecting the. credibility of the plaintiff, who testified that subsequent to the Tuesday when he was told by Hershey that he should not use the stairways or elevators of the building he was not in said building.
    Mr. Waite: That is objected to as utterly immaterial, irrelevant and inadmissible as to how much the plaintiff was in the building on another day. The plaintiff did not testify that he had not been in the buildings on other days, so it does not contradict him; he simply states in his examination that he did not remember to have used the inside of building “A” on the morning of the day on which he was hurt, but he did not testify that he had not been in building “A” on other days; but even if he had been it would tend to contradict him only on an immaterial point.
    The Court: Objection sustained. Evidence rejected. Bill of exceptions sealed for defendant. William Hassenflue being on the stand, this offer was made.
    Mr. Bailey: I propose to show by the witness on the stand that he passed over the fire escape at the point where the accident occurred a number of times before the accident occurred; that he had intended to speak to Mr. Woolheater of the J. C. Blair Company and to his own employees, but overlooked it; for the purpose of showing that that omission on the part of the witness is what produced the accident which forms the basis of this action; that it was his negligence which prevented the proper supporting of the fire escape and which was the proximate cause of the plaintiff’s injury.
    Mr. Waite: That is objected to because, if the evidence was even to go to the jury, it would only show contributory negligence on the part of the plaintiff’s employer, which would not relieve the defendant from its negligence, if the jury believe it was negligence, and if the negligence contributed to this accident.
    The Court: Objection sustained. Evidence rejected. Bill of exceptions sealed for defendant. [2]

      Errors assigned were: (1, 2) rulings on evidence, quoting the bill of exceptions; (3, 4) alleged misquotation of testimony; (5, 11, 14) charge of trial judge and answers to points; (13, 15) failure to give certain instructions; and, (16, 17) in refusing binding instructions for the defendant.

      W. S. Dalzell, of Dalzell, Fisher & Hawkins, and Thomas F. Bailey, for appellant,
    cited: Callan v. Pugh, 66 N. Y. Supp. 1118; Maguire v. Magee, 22 W. N. C. 159; Hotchkin v. Erdrich, 214 Pa. 460; Myers v. Edison Elec. Illuminating Co., 225 Pa. 387.

      H. H. Waite, with him Jas. S. Woods, for appellee.
    July 6, 1911:
   Opinion by

Mr. Justice Potter,

In this action the plaintiff sought to recover damages for injuries which he sustained through the alleged'negligence of the defendant company. He was a tinner and roofer, in the employ of a contractor who had engaged to copper flash the roofs of certain buildings for the defendant. There were three ways of gaining access to the roofs; by the elevator, by the inside stairway, and by the fire escape. The evidence tends to show that shortly after the work began, the vice-president of the defendant company gave directions that the workmen should not go through the buildings, but should use the fire escape to reach the roof. On the morning of June 6, 1908, the plaintiff was on the roof, in the discharge of his duties, and had occasion to descend. While on the fire escape one of the platforms gave way beneath him, and he fell and was severely injured. The defendant company was charged with negligence, in failing to maintain the fire escape in a safe condition, and in requiring plaintiff to use an unsafe way of passage. Upon the trial, a request for binding instructions in favor of defendant was refused, and. the case was submitted to the jury, who returned a verdict in favor of the plaintiff for the sum of $7,175. From the judgment entered thereon defendant has appealed.

In the first assignment of error, counsel complain of the action of the court below, in excluding defendant’s offer to show that plaintiff was in one of the buildings of defendant a day or two before the accident, and after the direction had been given to use the fire escape in order to reach the roof. We see no error in the exclusion of this offer. Its purpose was evidently to show that plaintiff did not obey the orders which had been issued, prohibiting the use of the elevator and the stairway. But the offer of proof, as made, fell short of that end. It was merely a proffer to show that plaintiff was in the building. If he was, it would not necessarily follow that he used the elevator or the stairway; and, even if he did do so, the relevancy of that fact to the issue being tried, is not apparent.

The second assignment is to the overruling of an offer to show that plaintiff’s employer had passed over the place, and had noticed, and intended to give warning of, the dangerous character of the fire escape at the point where the accident occurred. The offer was properly excluded, as immaterial. If there was any neglect of the kind indicated, on the part of the employer, its effect would not be to relieve the defendant of its own responsibility.

In the third and fourth assignments it is alleged that the trial judge, in charging the jury, inadvertently misquoted certain testimony. Our examination of the printed records leads us to think that the court was substantially correct in the statements made. But if, in the opinion of counsel for defendant, a mistake was made, it should have been brought to the attention of the court, before the jury retired; otherwise, the matter is not properly assignable for error: Kuntz v. N. Y., etc., R. R. Co., 206 Pa. 162; Com. v. Razmus, 210 Pa. 609.

The assignments from the fifth to the eleventh inclusive complain of portions of the' charge and of the answers to points relating to the extent of the injuries and to the measure of damages. In none of these do we see- any substantial error. There was ample evidence as to the probable permanence of the injuries. Dr. Northup testified that the probability of recovery was very unlikely; and again, that it was doubtful. Dr. Hoffman testified that he considered plaintiff to be permanently injured, and did not believe that he would be able to do any laborious work. Dr. Chisholm .said on cross-examination that the probabilities were that plaintiff would not ever fully recover from his injuries.

The refusal of defendant’s ninth point is made the subject of the twelfth assignment of error. We do not find that this point accurately states the testimony of Mr. Koch. An examination of the record does not show that he said positively that he never instructed any of the employees of the contractor to use the fire escape, but only that he testified that to the best of his recollection, he did not tell Mr. Hershey not to use the elevator or that he must use the fire escape. There was some evidence tending to show that plaintiff used the elevator, and on one occasion used the stairway between two of the upper floors, after he had been notified not to do so. Plaintiff, however, denied this. But even if he did use the elevator or stairway at times, in disregard of orders, that fact would not affect his right to rely upon the fire escape being in a proper condition, when he was ordered to use it. His action would not have affected the fact, if the jury found it to be such, that defendant’s manager had not only invited but ordered the employees of the contractor to use the fire escape. In the shape in which the ninth point was presented, it was properly refused.

In the thirteenth assignment of error complaint is made that the trial judge failed to give the jury certain instructions; but it does not appear that counsel for defendant made any request for any such instructions. This specification is not, therefore, to be sustained: Kaufman v. Pittsburg, etc., R. R. Co., 210 Pa. 440.

In the fourteenth assignment, it is suggested that the court below erred in the answer made to defendant’s tenth point, which requested the trial judge to charge that if the jury belived that plaintiff jumped a distance of three and one-half feet from the top of the fire wall to the floor of the fire escape, and thus subjected it to an undue strain he could not recover. While the trial judge refused the point as put, nevertheless he instructed the jury that it was for them to say “whether the plaintiff acted in the way an ordinarily prudent person under the same circumstances would have acted.” We think this was a fair submission of the question involved, to the consideration of the jury. More especially is this true in view of the fact-that in affirming the very next point for charge offered by counsel for defendant, the jury were instructed that if they believed that the negligence of the plaintiff contributed in any way to his injury, there could be no recovery in this action.

In the fifteenth assignment of error it is alleged that the court “having admitted the Carlisle Tables of mortality, erred in not carefully guarding the effect of the evidence by directing the attention of the jury to the circumstances affecting the duration of the life in question.” This specification is subject to the same criticism as that made upon the thirteenth assignment, in that it does not appear that counsel made any request upon the trial for any such instructions. It is undoubtedly true that where mortality tables are admitted in evidence, the jury should be cautioned not to accept the results set forth in the tables as conclusive; and they should have been directed to take into consideration the circumstances affecting the duration of the life in question. It would have been better if the trial judge had given such instructions. But we do not regard the omission in this case as amounting to reversible error. The testimony showed that plaintiff was in excellent health prior to the accident, so that if the. matter of his expectancy of life had been referred to by the trial judge in his charge, the evidence as to the age and physical condition of the plaintiff would have justified the jury in adopting the most favorable view of the probabilities of the continuation of his fife. Counsel made no request for instructions as to the weight to be given to the evidence obtained from the mortality tables, nor did they call the attention of the trial judge to his omission to charge upon that subject. We do not think the failure to so charge is sufficient to justify a reversal of the judgment.

In the sixteenth and seventeenth assignments of error complaint is made of the refusal by the trial judge of binding instructions in favor of defendant and of his refusal to enter judgment for defendant non obstante veredicto. These specifications raise broadly the question of the plaintiff’s right to recover. In support of their contention that defendant owed no duty to plaintiff, in the way of keeping the fire escape in safe condition, counsel for appellant cite the case of Callan v. Pugh, 66 N. Y. Supp. 1118. But an examination of that decision 'shows that it was put upon the ground that the excavation which caused the fall of the arch, was not made under the owner’s direction, nor did it appear that he had notice of the dangerous condition of the arch. Apparently it had been weakened by excavations which were being made by an independent contractor. The distinction between such facts and those of the case now before us is obvious. They also cite Maguire v. Magee, decided by this court, but reported in 22 W. N. C. 159. There the injury resulted from a defective scaffold, of a temporary character, erected by a contractor for the use of his own employees alone. In the case of Myers v. Electric Illuminating Co., 225 Pa. 387, the decision was based on the fact that the danger from uninsulated wires was an obvious one, of' which the plaintiff was held to have assumed the risk. In the argument of the case at bar, counsel rely strongly upon Hotchkin v. Erdrich, 214 Pa. 460, where the plaintiff was injured by a fall caused by the giving way of a round of a ladder inside a chimney, which he was ascending in order to perform some work at the top. But in that case, it was said (p.463): "The testimony does not show any direction to the plaintiff by the defendant to use the inside ladder, but it does show permission, or possibly an invitation, to do so.” In the present case there was not only an invitation by the defendant company to use the fire escape, but there was, according to the testimony for the plaintiff, an express direction to make use of that means of access to the roof, and a prohibition of the use for that purpose of the elevator or of the inside stairway. It was further pointed out in that case, that the same degree of attention is not required in caring for a place seldom used, as is requisite in the maintenance of a passageway frequently called into use. In that case no occasion for inspecting the ladder fastened upon the inside of the chimney, had arisen for some nine years. In the present case the defect was in a fire escape which from its very nature, and by reason of the purpose it was intended to serve, should have been kept in safe condition for use at all times. To be sure the use which the defendant company directed should be made of it by the plaintiff, was not the ordinary office of a fire escape, but it was apparently not an improper use, and at any rate it was placed at the disposal of the plaintiff and his fellow workmen, by the express direction of the officer of the defendant company. In making use of the fire escape, as directed and required, the plaintiff had a right to rely on the presumption that the defendant had performed its duty in providing a reasonably safe means of access to the roof. The fire escape was under the circumstances to all intents and purposes, an outside stairway. If instead of making use of it, the plaintiff had been instructed to take the inside stairway, and had been injured by the giving way of an improperly constructed platform, it would hardly be contended that the defendant would not be liable for the results. The fact that the fire escape, temporarily transformed at the direction of the defendant into a stairway, was located outside of the building, rather than inside, cannot change the principle involved. The decision in Hotchkin v. Erdrich is put expressly upon the grounds, first, that there was no direction to the plaintiff to use the old ladder inside the chimney; second, that the crude iron rounds on the inside of the chimney wall did not constitute, under the circumstances, such an appliance as the defendant was required to inspect and keep in repair; third, that plaintiff did not in that case rely on any presumption that the crude ladder was in safe condition, but instead proceeded to test and inspect it himself as he ascended it, , thus acknowledging and assuming the risk of its being defective. No one of these conditions, or anything similar thereto, is to be found in the case at bar. In White’s Supplement to Thompson on Negligence, sec. 979, what seems to be a sound general rule is thus expressed: “It is the rule that the owner of property owes to an independent contractor and his servants at work thereon, the duty of exercising reasonable care to have the premises in a safe condition for the work, unless the defects responsible for the injury were known to the contractor. It is to be observed that the owner is not charged with the absolute duty of having the premises safe; his duty is discharged by the exercise of reasonable care.” And in 21 Am. & Eng. Ency. of Law (2ded.) 471, it is said: “All the authorities agree that it is incumbent upon the owner of premises upon which persons come by invitation, express or implied, to maintain such premises in a reasonably safe condition for the contemplated uses thereof and the purposes for which the invitation was extended.” The underlying principle of these general statements has been recognized and enforced in our own cases. Eor example, in Pottstown Iron Co. v. Fanning, 114 Pa. 234, the plaintiff was a brakeman employed on a train of the Reading Railroad Company, which, while lawfully thereon, was wrecked by the collapse of a defective trestle owned and operated by the defendant. The latter was held liable for the damages resulting from, the death of the plaintiff. And in Pender v. Raggs et al., 178 Pa. 337, the owners of a building which was undergoing alteration, were held liable to an employee of the contractor who was making the alterations, for injuries resulting from the fall of a wall, which (as found by the jury) became unsafe from the act of the owner.

It is suggested in the argument that because sec. 22, of the Act of May 2,1905, P. L. 352, provides for an inspection of fire escapes, it is to be presumed that defendant had complied with the law, and that the fire escape here in question had been duly'inspected and approved. There is no evidence, however, of any such inspection. The record shows the positive testimony of David Hershey that the accident was due to defective construction of the fire escape which would have appeared had there been a proper examination or inspection. We are satisfied that, under all the evidence, this case was for the jury, and that in the manner of its submission, there was no substantial error. The assignments of error are therefore dismissed, and the judgment is affirmed.


author: Mr. Justice Moschzisker,

text:
    Owens, Appellant, v. Gas Company.

      Lease — Oil lease — Reservation—Written instrument — Specific averment of violation — Equity.
    1. Certain land was let to defendant for oil development under a written lease, which described the property as follows: “All that tract of land situate in the Township of Kiskiminetas, County of Armstrong, Pennsylvania, bounded North by lands of Apollo Borough and Public Road; East by lands of William McKinstry et al.; South by lands of William McKinstry et al.; West by lands of Apollo Borough et al.; being all of said farm with the exception of 50 acres, being the northwestern portion thereof, containing one hundred and fifty-three acres, more or less.” Under this lease defendant proceeded to drill a well in the southwestern portion of the tract, which operation the owner sought to enjoin, alleging that the well was within the fifty acres excepted from the demised land. Held, that the written instrument plainly by the ordinary rules of construction excepts the northwestern fifty acres, inasmuch as the phrase “being in the northwestern portion thereof,” refers to its immediate antecedent, the excepted “ 50 acres.”
    2. Where in such a case the lease also contains the provision “All wells must be located at point satisfactory to both parties,” but the only violation of the lease, or dissatisfaction averred in the bill manifestly refers to the wrongful drilling of a well “upon the tract . . . . reserved .... under the lease,” an indefinite, unexplained and perhaps arbitrary dissatisfaction, not specifically averred in the bill, cannot be relied upon to convict a chancellor of error in refusing an injunction.
    Argued April 25, 1911.
    Appeal, No. 48, Oct. T., 1911, by plaintiff, from decree of C. P. Armstrong Co., Sept. T., 1910, No. 24, in equity, sustaining demurrer in case of Hugh G. Owens v. American Natural Gas Company.
    Before Fell, C. J., Brown, Mestrezat, Stewart and Moschzisker, JJ.
    Affirmed.
    Motion for a preliminary injunction. Before Patton, P. J.
    The facts are stated in the opinion of the Supreme Court.
    ■ Errors assigned were in sustaining defendant’s demurrer and dismissing bill.

      Harvey A. Miller, with him Edwin L. Dively, for appellant.
    — The language of the lease was not sufficiently clear as to the location of the fifty acres excepted and reserved as to exclude oral evidence to determine the intention of the parties: Safe Deposit & Trust Co. v. Seyfang Manufacturing Co., 000 Pa. 000; Boice v. Zimmerman, 3 Pa. Superior Ct. 181; Lulay v. Barnes, 172 Pa. 331.

      Walter Lyon, of Lyon & Hunter, with him Heiner & Golden, for appellee.
    July 6, 1911:
   Opinion by

Mr. Justice Moschzisker,

The decision of the matter before us requires the interpretation of a written instrument. The plaintiff owned certain land which he let for oil development. The lease described the property as follows: “All that tract of land situate in the Township of Kiskiminetas, County of Armstrong, Pennsylvania, bounded — North by lands of Apollo Borough and Public Road; East by lands of William Mc-Kinstry et al.; South by lands of William McKinstry et al.; West by lands of Apollo Borough et al. — being all of said farm with the exception of 50 acres, being the northwestern portion thereof, containing one hundred and fifty-three acres, more or less.”

The defendant built a rig and was proceeding to drill a gas well on the southwestern corner of the tract, when the plaintiff obtained a preliminary injunction, alleging that the well was within the fifty acres excepted from the demised land. The injunction was dissolved, and the defendant demurred to the bill upon the ground that “the lease .... shows upon its face that the portion of this land upon which the defendant entered for the purpose of drilling the well .... is included in the land upon which the defendant has the leasehold.” The court below sustained the demurrer and dismissed the bill.

The question is as to the location of the fifty acres excepted from the lease. The plaintiff contends that it is in the southwestern part of the tract where the gas well is drilled, while the defendant contends that the lease clearly located the fifty acres in the “northwestern portion thereof.”

The written instrument plainly excepts the northwestern fifty acres. The whole tract had an area of 203 acres, and after the fifty acres were taken out, it then contained the 153 acres intended to be let, the excepted part being the fifty acres in the northwestern portion of the tract. This construction refers the phrase “being in the northwestern portion thereof” to its immediate antecedent, the excepted “50 acres.” The phrase cannot be referred to the 153 acres on any reasonable construction, for that would place three-fourths of the land in the northwestern portion of the whole tract, which would be an impossible situation. The ordinary rules of interpretation require the construction which we place upon the description contained in the lease, and there is nothing in the evidence called to our attention which would demand any other.

The lease contains a covenant that, “Said lessee shall also pay an acreage rental for said land of one dollar per acre, viz., one hundred fifty-three dollars per annum. . . . Provided that each producing well drilled on said land shall suspend the acreage rental on fifty-one acres of said farm, so long as the well rental or royalty above provided for is paid. All wells to be located at points satisfactory to both parties. ...” The court below decided that this provision as to the location of the wells, “was never intended to apply to such a controversy as has now arisen. It applies to the rent or royalty, and was put in to protect both parties as to the acreage royalty or well royalty, as the case might be, after one or more test wells were put down.” It is not necessary to decide whether or not this is the proper construction, for the only violation of the lease, or dissatisfaction, averred in the bill manifestly refers to the alleged wrongful drilling of a well “upon the tract of 50 acres reserved and excepted to your orator under the lease,” and not to the location of a well on the land demised at a point which was unsatisfactory/to the plaintiff for some other reason, or for general reasons. An indefinite, unexplained and perhaps arbitrary dissatisfaction, not specifically averred in the bill, cannot be relied upon to convict a chancellor of error in refusing an injunction.

The assignments of error are all overruled, and the decree of the court is affirmed at the cost of the appellant.


author: Mr. Justice Moschziskeb,

text:
    New Cumberland Borough, Appellant, v. The Riverton Consolidated Water Company and Mountain Water Company.

      Equity — Jurisdiction—Municipal corporations — Water company— Contract to sell plant — Adequate remedy at law — Mandamus—Act of June 7, 1907, P. L. 440.

    1. A court of equity is without jurisdiction in a case where a municipal corporation seeks to compel a water supply company to sell its plant under a special contract and to render a statement of the cost of erecting and maintaining its works.' The appropriate remedy in such a case is at common law by mandamus.
    2. Such a case is not within the purview of Act of June 7,1907, P. L. 440, where the appeal is by the plaintiff and the contention that “suit should have been brought at law” is not raised and where furthermore the question is not whether the decree shall be reversed or set aside, but simply whether the appeal shall be dismissed. Under these circumstances a dismissal of the bill will -.not be disturbed. Williams-port v. Citizens’ Water & Gas Co., ante, p. 232, distinguished.

      Municipalities — Boroughs—Ordinance—Option to buy — Construction —Acceptance of ordinance — Charter rights — Act of April 29,1874, P- L-78.

    3. A borough ordinance, passed for the purpose of giving a franchise to a certain party to enter upon the streets and highways of the borough for the purpose of supplying water to the borough and its inhabitants, provided as follows: “That the said borough of New Cumberland shall have the option before all other persons or corporations to purchase the complete and entire plant of the said H. M. Horner at the end of ten (10) years, as provided for by the existing laws of the state of Pennsylvania, and if no purchase is made by the borough at the end of ten years, then this ordinance is to remain in full force until waterworks are purchased by the said borough.” Held, as the opinion of the Supreme Court although not involved in the decision of the case that the words used mean that the borough shall have the right to acquire the water plant upon the terms provided in the Act of April 29, 1874, P. L. 73, at any time after ten years, instead of “at any time after twenty years” as fixed in the statutes.
    4. If companies incorporated after the date of such an ordinance, assignees of the privileges which were passed for the benefit of one of the companies in anticipation of its incorporation, have accepted and assumed the benefits and obligations of the ordinance and installed a plant thereunder, they are presumably subject to and bound by its provisions, even though they had a charter right under the Act of April 29, 1874, P. L. 73, to enter the borough and install their plant.
    Argued April 25, 1911.
    Appeal, No. 233, Jan. T., 1910, by plaintiff, from decree of C. P. Cumberland Co., in equity, June T., 1909, No. 5, sustaining demurrer in case of Borough of New Cumberland v. The Riverton Consolidated Water Company and Mountain Water Company.
    Before Fell, C. J., Brown, Mestrezat, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity to compel the defendant company to sell its plant to the plaintiff borough and to render to it an itemized statement of the net cost of erecting and maintaining its works, together with a detailed statement of dividends declared, and to exhibit such books, accounts, etc., as might be necessary to verify the statement so made. Before Sadler, P. J.
    The material facts are stated in the following excerpt from the opinion of the court below: “On January 20, 1896 an ordinance was passed by the borough of New Cumberland, the plaintiff in this case, giving a franchise to H. M. Horner, or his heirs and assigns, to enter upon the streets and highways of that municipality for the purpose of supplying water to the same and its inhabitants. This ordinance contained a number of provisions; the one pertinent to the present contention, and upon which the bill in this case is based being the eleventh section, and is as follows:
    “ ‘That the said borough of New Cumberland shall have the option before all other persons or corporations to purchase the complete and entire plant of the said H. M. Horner at the end of ten (10) years, as provided for by the existing laws of Pennsylvania, and if no purchase is made at the end of ten years, then this ordinance is to remain in full force until waterworks are purchased by the said borough.’
    “The Mountain Water Company was incorporated February 20, 1896, under the General Act of April 29, 1874, P. L. 73, providing ‘for the incorporation and regulation of certain corporations.’ This corporation was on February 17, 1904, merged with other water companies into a corporation designated the Riverton Consolidated Water Company.
    “On August 16, 1909, the town council of the said borough passed a resolution declaring that ‘it intended and proposed to become the owner of the works and property of the said Mountain Water Company, under the terms of the franchise granted the said Mountain Water Company on January 20, 1896, and accepted by it on the twenty-second day of the same month, and the acts of assembly relating to this subject, made and provided, and agreeing and undertaking thereby to pay therefor the net cost of erecting and maintaining the same, with interest thereon at the rate of ten per centum per annum, deducting from said interest all dividends heretofore declared.’ The resolution also contained the request that the Riverton Consolidated Water Company should ‘exhibit to a committee of the town council, their attorney or expert accountant, a detailed or itemized statement showing the net cost of erecting and maintaining the works and property of the Mountain Water Company, as well as the amounts and dates of the payment of all dividends, if any, declared, together with such information as will enable said committee, its agents and experts to verify said statements, and that if said request is not complied with, and if the same is not done, to take such legal steps as may be necessary to compel the giving of the information desired.’ A copy of the resolution was served upon the secretary of said Riverton Consolidated Water Company, on August 18, 1909, and reply made on September 17, that ‘we have no desire at present to part with our plant,’ and the information desired was thus refused.
    “The bill prays .... for a decree, that ‘the plaintiff is entitled to purchase the plant of the Mountain Water Company by virtue of the ordinance of January 20, 1896, under the laws of the State, and also, that a detailed and itemized statement of the net cost of erecting and maintaining the works and property of the said Mountain Water Company, as well as of all dividends declared by the same, be furnished, and that an order be made upon it to produce all its books, accounts, etc., to the water committee, attorney, or expert accountant, if such statement is regarded insufficient, so that the same may be compared and properly made up, according to the act of assembly in such case made and provided.’ . . . .”
    The plaintiff’s claim of right was averred in the bill as based on the section of the ordinance above quoted and clause 7, of sec. 34, of the Act of April 29, 1874, P. L. 73, which provides that, “It shall be lawful at any time after twenty years from the introduction of water .... into any place .... for the .... borough .... into which said company shall be located, to become the owners of said works, and the property of said company, by paying therefor the net cost of erecting and maintaining the same, with interest thereon at the rate of ten per centum per annum, deducting from said interest all dividends theretofore declared.”
    The defendants demurred, and the court below dismissed the bill.

      Errors assigned were sustaining the demurrer and dismissing the bill.

      J. W. Wetzel, with him Conrad Hambleton, for appellant.

      S. B. Sadler, for appellees.
    July 6, 1911:
   Opinion by

Mr. Justice Moschziskeb,

The court below dismissed the bill upon the ground that the provision of the ordinance of councils, "That the said borough of New Cumberland shall have the option before all other persons or corporations to purchase the complete and entire plant of the said H. M. Horner at the end of ten (10) years as provided for by the existing laws of the State of Pennsylvania, and if no purchase is made by the borough at the end of ten years, then this ordinance is to remain in full force until waterworks are purchased by said borough,” did not serve to reduce the time fixed in clause 7, of sec. 34, of the Act of April 29, 1874, P. L. 73, to ten years, but merely gave the borough a contingent right to purchase the water company’s plant before all others at the end of the ten years named in the ordinance, provided the water company was then willing to sell, or, in the words of the court below, it simply meant that "at the end of ten years there can be no sale by the company of its property and rights to ‘other persons or corporations’ without first offering it to the borough.” We cannot agree with this construction. We interpret the words used to mean that the borough shall have the right to acquire the water plant upon the terms provided in the act of 1874, supra, at any time after ten years, instead of "at any time after twenty years” as fixed in the statute.

The defendants contend, however, that they' had a charter right under the act of 1874 to enter the borough and install their plant, and therefore the ordinance was not binding upon them. It is to be noted that these companies were not incorporated until after the date of the grant to Horner, and, as we understand the case from the averments of the bill demurred to, they are the assignees of the Horner privileges which were passed for the benefit of the Mountain Water Company in anticipation of its incorporation. If the defendant companies for reasons of their own accepted and assumed the benefits and obligations of this ordinance and installed the plant thereunder, or if they took over a plant so installed, presumably they are subject to and bound by the section of the ordinance particularly depended upon by the plaintiff. But since we have not the benefit of any findings and do not know exactly what the real facts are, we shall not attempt to determine the actual effect of the ordinance upon the liability of the defendant company under the act of assembly; for whatever its effect may be, the court below was without jurisdiction in equity to afford the desired relief. We have fully treated of the subject of the proper proceedings to be pursued in actions of this character in an opinion this day filed in the case of the City of Williamsport v. The Citizens’ Water and Gas Co., ante, p. 232; and we there held that the remedy was at common law by mandamus.

In the case just cited we remitted the record to the court below with directions to transfer the cause to the law side of the court. This was done in acquiescence with sec. 3, of the Act. of June 7,1907, P. L. 440, which provides: “If upon an appeal, after a decision upon the merits, the question whether the suit should have been brought at law is not specifically raised by the defendant’s assignments of error, the question shall be deemed to have been waived, and the decree below shall not be reversed or set aside because the suit should have been brought at law. If it is so raised, and the decision of the appellate court is that the suit should have been brought at law, it shall remit ' the cause to the court below, with directions to transfer it to the law side of the court. . . . The plaintiff shall not be permitted to raise the question» upon his appeal after a decision upon the merits, nor shall the decree below be reversed or set aside upon his appeal, because the suit should have been brought at law.” In the Williamsport case the appeal was by the defendant and the assignments of error specifically raised the contention that “the suit should have been brought at law.” Here the appeal is by the plaintiff, and that point is not so raised. Furthermore, the question is not whether we shall “reverse or set aside” the decree, but simply whether we shall dismiss the appeal. Hence the present case is not within the principle of our decision in the Williamsport case, or within the purview of the act of 1907.

Since the suit was instituted in equity and tried without jurisdiction, a judgment in favor of the plaintiff could not have been sustained had it been entered (Lewisburg Bridge Co. v. County of Union, et al., decided at this term, ante, p. 255 — and cases there cited); under these circumstances we shall not disturb the dismissal of the bill; although, as before indicated, if the error assigned as to the construction placed upon the ordinance were the only matter before the court for decision, we should sustain the specifications and reverse the decree with a procedendo.

The appeal is dismissed, without prejudice; the costs to be divided between the parties.


text:
    New Cumberland Borough, Appellant, v. Riverton Consolidated Water Company.

      Municipalities — Boroughs—Water companies — Borough ordinance — ' Nonpermissive use of streets — Charter rights — Limitation—Sources of supply — Purpose of user — Ground for relief.

    1. Water companies are not required to obtain permission of a borough to lay pipes in its streets, for the manifest reason that their charters give them the right to enter upon the streets and lay their mains without such permission.
    2. Where a water company supplies water to a borough under a binding ordinance the company is not prevented from exercising charter rights not inconsistent with the terms of the ordinance simply because no direct reference to the particular rights to be exercised is to be found therein, even though it be conceded that all general rights of the company inconsistent with the municipal grant would be limited by its terms. The maxim “expressio unius est exclusio alteráis” is not to be applied in the construction of such an ordinance so as to deprive the water company of its charter rights.
    3. Whether or not such a borough ordinance permits the construction of a water line in the streets is immaterial, where there is no limitation in the ordinance which would affect the company’s charter right to enter upon the streets and lay their mains without such permission.
    4. A borough ordinance under which a water company supplied water contained the provision that the grantees should have the right “to enter upon the streets and highways of the said borough for the purpose of supplying good water to said borough and the inhabitants thereof. . . . Said water to be mountain water taken from the springs or runs in Fairview Township, York County, Penna., so long as the consumption of the Borough shall not exceed the supply of such springs or runs as may be selected by said Horner, in which event the additional water shall be pumped from the Yellow Breeches Creek.” The borough sought to enjoin the laying of a proposed new line partly on the ground that this provision limited the right of the defendant company to pipes conveying water from the springs and runs referred to, so long as they furnished a sufficient supply. It appeared that the water which was to run through the new line came from the Yellow Breeches creek, a source of supply mentioned in the ordinance. Held, that even though there may be a sufficient quantity of mountain water from the springs and runs to supply present needs, the company, fixed with the obligation to keep up such supply, can provide for the future by making the water from the creek presently available for the borough.
    5. In such a case the fact that the new main may be used by the company for the purpose of transporting water beyond the borough limits, is not sufficient ground for an injunction to prevent the laying of the new main, where it appears that it is not to be used exclusively to supply distant points but “ it will also furnish water for the borough ” and is to be used for furnishing a circulating system of water with the old pipes, as well as to furnish increased fire protection.

      Practice, C. P. — Answers to points — Evasive answers — Equity.
    6. Litigants and the Supreme Court are entitled to have direct, definite answers placed on the record to all requests for findings, and where the replies are evasive they merely serve to confuse and not to assist a proper determination of the issues.

      Appeals — Specifications of error — Exceptions—Equity.
    7. Specifications of error on appeal in an equity case should show that there were exceptions taken in the court below to the matters complained of, and should be to the final action of the court on the exceptions.
    Argued April 24, 1911.
    Appeal, No. 94, Jan. T., 1911, by plaintiff, from decree of C. P. Cumberland Co., in equity, Oct. T., 1910, No. 2, dismissing bill in case of Borough of New Cumberland v. Riverton Consolidated Water Company.
    Before Fell, C. J., Brown, Mestrezat, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction to restrain the defendant company from entering upon the streets and highways of the plaintiff borough and constructing thereon without its consent the water line referred to in the opinion below.
    The following excerpts from the opinion of the court below state the facts material to this report: “The borough of New Cumberland is the plaintiff .... ,while the defendant is a water company organized by the merger of six other corporations, one of them being the Mountain Water Company, and which was incorporated under the general laws of the commonwealth on February 15, 1896. The complaint of the plaintiff is in substance that ■ the defendant supplies .... other places with water, and for the purpose of supplying such other municipalities and places outside of the borough of New Cumberland have constucted or are in process of constructing a filtering plant on the banks of the Yellow Breeches Creek . . . . outside of the limits of the borough of New Cumberland, and that for the purpose of conveying the filtered water from the above mentioned filtering plant to the consumers northward and outside of the borough of New Cumberland the said company proposes and have surveyed and made plans and commenced to dig and install a main water line from said filtration plant to the consumers of said company outside of the borough of New Cumberland, within the borough limits, without the consent of said borough; that said work has just started at the corner of Second and Geary streets within said borough, and the defendant has declared its purpose to be to convey said main supply water line, through the said borough upon the line of said Geary street for a distance of about twelve hundred feet — the size of said pipe to be from twelve to sixteen inches in diameter — this being done without the consent of the borough authorities and against their protest. ... It is also averred that the Mountain Water Company supplies water under an ordinance passed by the borough of New Cumberland on January 20, 1896, and is bound by its provisions. The prayer is that the company defendant may be enjoined from digging trenches and laying water pipes on Geary street, or other streets and highways of the borough, and it be decreed that it has no authority so to do. . . .
    “The allegation in the bill that the pipe line proposed to be laid is solely for the conveyance of water to localities outside of and beyond the borough of New Cumberland was not supported at the hearing .... but the contrary was clearly shown, and not contradicted. . . . The general manager testified that ‘the purpose is to supply not only the territory north of New Cumberland, but also to supply a circulating system in New Cumberland, and to increase its pressure.’ Richwine, secretary and treasurer of the defendant company, testified that ‘the object of the company was to give a larger supply of water for fire protection;’ that what was proposed to be installed ‘was a grid-iron system, a cross system, connecting each pipe line, so as to give a certain flow, and so there will be no dead ends; so the water will flow through all the pipes of the system — a cross connection of each pipe line with the other.’ . . . The defendant is erecting a station and filter plant .... and other improvements to its system involving necessarily a very large outlay of money, and testimony was offered to show that one of the incentives to do this was that there had been complaint by citizens of New Cumberland as to the water supply . . . .; that by the laying of the proposed new and larger pipe, and making connections with those formerly laid it will give the circulation required to prevent water from becoming stagnant in the 'dead ends/ which has heretofore obtained in the existing system of distribution; also that by means of this new pipe line, and the proposed connections, the company will be enabled to give New Cumberland and the other communities which it serves a much more abundant supply, and that of pure filtered water, and a pressure much more serviceable for fire purposes, as already stated. It was also shown .... that the establishment of the pumping station and purification works, the laying of a new force main from there to a new reservoir north of White Hill, and the laying of additional street mains in White Hill, Lemoyne and New Cumberland were submitted to Samuel G. Dixon, commissioner of health of the commonwealth, and were approved by him, and permits given to the company defendant .... to make the proposed additions and changes to its system, under the powers conferred upon him by the provisions of an Act of assembly approved April 22, 1905, P. L. 260.
    ''The defendant insists, and we think with some force, that these permits of the commissioner of health should be regarded under the powers conferred upon him by the Act of assembly of April 22, 1905, P. L. 260, in the nature of orders or decrees, which were obligatory upon the company, and which it could not disregard; but even if they, be not regarded as legally enforceable, yet it cannot in any aspect of the case be treated otherwise than as most influential in determining whether the plans which the defendant seeks to carry into execution are wise and justifiable or not. It was also urged that the ordinance of January 20, 1896, given to Horner and assigned to the Mountain Water Company, authorizes the entry upon the streets and alleys of the borough.
    ''After hearing and giving due consideration to what has appeared before us, we have been unable to discover that there is any valid or reasonable objection to the carrying out of its plans by defendant. Indeed, on the other hand, what is proposed seems to promise beneficial results. The borough of New Cumberland will have a larger and an abundant water supply to draw from. To that from the springs and runs in York County will be added pure filtered water from an inexhaustible source; circulation will be insured in the pipes and stagnation, with consequent deterioration avoided, while the additional pressure provided will render it more serviceable in case of fire, and insure better protection. As a matter of course, the ditches dug in which to lay pipes, will be filled up, and the streets put in equally as good condition for public travel as they were before being entered upon by the defendant. We are, therefore, of the opinion that the plaintiff is not entitled to the relief sought by it in this bill.”
    The bill was dismissed, after a hearing on the merits, and the plaintiff appealed.

      Errors assigned were answers to requests for findings, rulings on prayers for the withdrawal of testimony and on the admission of evidence, and the decree dismissing the bill.
    J. W. Wetzel, for appellant.
    — In the absence of any legislative right in the defendant to enter upon and occupy the streets of the borough complainant with a water main "to carry water supply to outside municipalities not included in the Mountain Water Company charter, the defendant cannot do so without the consent of the said borough.

      S. B. Sadler, for appellee.
    — Gas and water companies are not required to obtain permission of a borough to lay pipes in its streets: Dorrence v. Bristol Boro., 224 Pa. 464; Shryock v. North Braddock Boro., 43 Pa. Superior Ct. 508.
    The merged company has the powers of each of the constituent companies: Chester County Gas Co. v. Gas & Electric Co., 16 Pa. Dist. Rep. 214.
    The orders of the department of health were mandatory.

      July 6, 1911:
   Opinion by

Mr. Justice Moschziskeb,

While there are numerous specifications of error, the appellant’s principal contentions are that the court below failed to give full and proper effect to the ordinance of councils referred to in its opinion; that it admitted incompetent testimony; that it failed to understand and misapplied the actions of the health authorities in relation to the matters before it for adjudication, and that the answers to the plaintiff’s requests for findings were “evasive, indefinite and not responsive to the issue raised in this case.”

Though much might be said in criticism of the manner in which certain parts of the adjudication are stated, after a thorough consideration of the whole record, we are not convinced that an incorrect result was reached or that any of the alleged errors call for a reversal.

Whether or not the orders and permits of the state health authorities to the defendant company were sufficient warrant in law to justify the construction through the plaintiff borough of the water line here objected to, and whether or not the municipal ordinance permits such construction, it is not necessary to decide; for “water companies are not required to obtain permission of a borough to lay pipes in its streets, for the manifest reason that their charters give them the right to enter upon the streets and lay their mains without such permission,” (Dorrance v. Bristol Boro., 224 Pa. 464, 472); and there is no limitation in the ordinance which would affect the defendant’s right to construct the line in question.

Should it be conceded that all general rights of the water company inconsistent with the municipal grant would be limited by the terms of the ordinance, that would not prevent the defendant from exercising charter rights, which are not inconsistent, simply because no direct reference to the particular rights desired to be exercised are to be found in the ordinance. In other words, the maxim “expressio unius est exclusio alterius” is not to be applied in the construction of this ordinance so as to deprive the water company of its charter rights.

It is provided in the ordinance that Horner and his assignees shall have the right “to enter upon the streets and highways of the said borough for the purpose of supplying good water to said borough and the inhabitants thereof. . . . Said water to be mountain water taken from the springs or runs in Fairview Township, York County, Penna., so long as the consumption of the borough shall not exceed the supply of such springs or runs as may be selected by said Horner, in which event the additional water shall be pumped from the Yellow Breeches Creek.” The appellant contends that this limits the right of the defendant company to pipes conveying water from the springs and runs referred to, so long as they continue to furnish a sufficient supply. It appears, however, that the water which is to run through the new line is to come from the Yellow Breeches Creek, a source of supply named in the ordinance. Even though there may be a sufficient quantity of mountain water from the springs and runs to supply the present needs of the borough, it does not follow that the water company, fixed with the obligation to keep up such supply, could not provide for the future by making the water from the Yellow Breeches Creek presently available in the borough. Hence the limitation contended for fails.

The findings of the court below are that the new main is not to be used exclusively to supply distant points, but “it will also furnish water for the borough of New Cumberland” and “is to be used for furnishing a circulating system of water with the old pipes as well as to furnish increased fire pressure” needed within the borough. Under these circumstances, the fact that it may also be used by the defendant company for the purpose of transporting water beyond the borough limits, would not be sufficient to justify us in reversing the court below for refusing the relief asked for by the plaintiff.

We are satisfied by our examination of the record and by what is stated by the learned president judge of the court below, to the effect that he was not influenced in reaching his conclusions by any testimony in the nature of hearsay, that no harmful error was committed in the rulings on the evidence.

Some of the answers to requests may be justly criticised as “evasive.” Litigants, and this court, are entitled to have direct definite answers placed upon the record to all requests for findings, and when the replies are evasive they merely serve to confuse, and not to assist a proper determination of the issues. The answers complained of have caused us additional labor in examining the evidence, but we are satisfied that no material harm has been done to the plaintiff.

Equity rule 67 provides that upon appeals to the Supreme Court such matters only as have been excepted to and finally passed upon by the court below shall be assigned for error. The preceding rules provide for the taking of exceptions in the trial court, and rule 65 that, “if no exceptions be filed, all objections shall be deemed to be waived.” The assignments in this case do not show that exceptions were taken, or, if taken, how disposed of. For instance, the first specification is: “The learned court below erred in its answer to the first finding of fact for the plaintiff,” quoting the request and answer. This specification should have shown that there was an exception taken, and the assignment of error should have been to the final action of the court on the exception. In Landis v. Evans, 113 Pa. 332, 335, we said: “The assignments of error are an essential part of the pleadings in this court, and as such should be so complete in themselves as not to require reference to other parts of the record.” Here we must look in other parts of the record for the exceptions and the rulings thereon.

We will not specifically pass upon the twenty-five specifications of error; such of them as it would serve any useful purpose to discuss, have already been touched upon. They are all dismissed and the final decree of the court below is affirmed at the cost of the appellant.