text:
    Dannenhower v. Western Union Telegraph Company, Appellant.

      Negligence — Telegraph company — Live wire — Death.
    In an action against a telegraph company to recover damages for death, it appeared that an unused telegraph wire which belonged to the defendant, or was under its control, fell across an electric light feed wire of an electric light company. The telegraph wire had been connected with a call box which had been removed some months before the accident. The wire had fallen three or four weeks before. One end of it extended down so near the pavement that children reached and played with it; the other end was wrapped around an iron pole. The deceased was a trimmer in the employ of the electric light company, and was killed by an electric shock while engaged in placing carbons in a lamp attached to the pole. There was no evidence to show that the deceased had not taken due care. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.

      Negligence — Proximate and remote cause — Intervening act.

    A negligent act may be the proximate cause of an injury, although not the sole nor immediate cause, where the intervening act is set in motion or induced by the negligent act and the consequence is one that should have been foreseen.

      Argued April 2, 1907.
    Appeal, No. 106, Jan. T., 1907, by defendants, from judgment of O. P. No. 1, Phila. Co., June T., 1900, No. 414, on verdict for plaintiff in case of William Dannenhower by his next friend and guardian, Ambrose Higgins, v. Western Telegraph Company and the Philadelphia Local Telegraph Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s father. Before Biddle, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $6,500. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      JB. B. Gill, with him John R. Read, Silas W. Pettit and Loúis B. Runic, for appellant.-
    -The negligence of the owner of the wire reaching from the tree to the drug store was not the proximate cause of the accident: Behling v. S. W. Penna. Pipe Lines, 160 Pa. 359; Marsh v. Giles, 211 Pa. 17; Bannon v. Railroad Co., 29 Pa. Superior Ct. 231; Elliott v. Light Co., 204 Pa. 568; Stone v. Boston, etc., Railroad Co., 171 Mass. 536 (51 N. E. Repr. 1).

      Francis Fisher Kcme, with him Wa/rren O. Graham, John J. Green and Beclc c& Robinson, for appellee.
    The question of proximate cause was rightly submitted to the jury: Daltry v. Media Electric Light, etc., Co., 208 Pa. 403; Aument v. Tel. Co., 28 Pa. Superior Ct. 610; Turton v. Powelton Electric Co., 185 Pa. 406; Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540; Western Union Tel. Co. v. State, 82 Md. 293 (33 Atl. Repr. 763); Southern Bell Teh, etc., Co. v. McTyer, 137 Ala. 601 (34 So. Repr. 1020); Jackson v. Wisconsin Tel. Co., 88 Wis. 243 (60 N. W. Repr. 430); Dillon v. Allegheny County Light Co., 179 Pa. 482; Herron v. Pittsburg, 204 Pa. 509.
    May 13, 1907:
   Opinion by

Mr. Justice Fell,

An unused telegraph wire, which it was alleged belonged to the defendant or was under its control, fell across an electric light feed wire of the Northern Electric Light Company. The telegraph ware had been connected with a call-box which had been removed some months before the accident. The wire had fallen three or four weeks before. One end of it extended down so near the pavement that children reached and played with it; the other end was wrapped around an iron pole. The deceased was a trimmer in the employ of the electric light company, and was killed by an electric shock while engaged in placing carbons in a lamp attached to the pole.

A reversal of the judgment for the plaintiff is asked on the grounds (1) that there was no sufficient evidence that the telegraph wire belonged to the defendant or was under its control; (2) that the falling of the wire was not the proximate cause of the accident; (3) that the presence of the wire and the danger because of its contact with the electric light wire must have been known to the deceased as he ascended the pole.

That the wire was controlled by the defendant was not questioned at the trial, and while there was no direct proof of its ownership, there was proof that it had been connected with a Western Union call-box, and the defendant put in evidence a blue print, made the day after the accident, on which the wire was marked “ W. U. Telegraph wire.” This by way of admission supplied any defect in the formal proof of ownership. There was evidence that children had been pulling on the loose end of the telegraph wire and that the electric light wire on which it rested had sagged and there were burned marks on the frame of the lamp. Sparks had been emitted by the telegraph wire two weeks before the accident. Two theories of the cause of the accident were advanced at the trial. That of the plaintiff was that the deceased came in contact with the telegraph wire which had been charged by its contact with the electric light wire; that of the defendant that he came in contact with the frame of the lamp which was charged from the electric wire which had been pulled down and brought in .contact with it. If the latter theory were correct, it would not follow that the defendant was relieved of responsibility, because it was its wire that either caused the' sagging of the electric light wire by dragging it down or was the means by which children drew it down. The latter was a consequence to be foreseen and guarded against and it did not break the causal connection between the defendant’s negligence and the injury. A negligent act may be the proximate cause of an injury although not the sole nor immediate cause, where the intervening act is set in motion or induced by the negligent act and the consequence is one that should have been foreseen. In Marsh v. Giles, 211 Pa. 17, relied on by the appellant, the injury to the plaintiff was caused by the unrelated act of a third party and was not a probable consequence of the defendant’s wrongful act.

The questions of proximate cause under the conflicting testimony and of contributory negligence were properly submitted. As to the latter there ivas no evidence that the deceased had not taken reasonable care to avoid every danger, knowledge of which could be imputed to him.

The judgment is affirmed.


source: Caselaw Access Project

author: Me. Justice Fell,

license: Public Domain

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

      Negligence — Street railways — Alighting from car — Passenger.
    In an action against a street railway company to recover damages for personal injuries sustained while alighting from a car, the case is for the jury where the evidence shows that the accident occurred at a point where it was customary for the cars to stop on the near side of the street at a steam railroad crossing to enable the conductor to go ahead in order to look out for trains, that it was customary for passengers to get off .at this stop, that plaintiff knew of this custom, that she signaled the conductor, and in attempting to alight after two passengers who had preceded her, she was thrown by the premature starting of the car.
    Argued April 3, 190T.
    Appeal, No. 391, Jan. T., 1906, by defendant, from judgment of C. P. No. 5, Phila, Co., Sept. T., 1905, No. 3,823, on veidict for plaintiff in case of John Thomas and Mary Ann, his wife, v. Philadelphia Rapid Transit Company.
    Before Mitchell, O. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries. Before Ralston, J.
    The facts are stated in the opinion of the Supreme Court.
    The verdict for John Thomas was $2,500 and for Mary Ann Thomas for $5,000, which were remitted to $1,500 and $3,500 respectively and judgments were entered thereon.

      Error assigned was in dismissing defendant’s motion for judgment non obstante veredicto.

      Thomas Learning with him Stevens Ilechscher, for appellant.
    Defendant was not liable under the circumstances of this case: D., L. & W. R. R. Co. v. Wilkes-Barre, etc., Ry. Co., 1 Pa. Dist. Rep. 627; Penna. R. R. Co. v. Suburban Rapid Transit Co., 1 Pa. Dist. Rep. 636; State v. Young, 56 Atl. Repr. 471; Nellis on Street Surface Railroads, 484; Pitcher v. People’s Street Ry. Co., 154 Pa. 560; Margo v. Penna. R. R. Co., 213 Pa. 463; Steiner v. Traction Co., 134 Pa. 199.

      William, A. Carr, with him W. Horace Hepburn and Sidney L. E/rauvs, for appellees.
    The case was for the jury: Margo v. Pennsylvania R. R. Co., 213 Pa. 463; Ashtabula Rapid Transit Co. v. Holmes, 67 Ohio, 153 (65 N. E. Repr. 877); Houghton v. Louisville Ry. Co., 3 Street Railway Rep. 282; Railway Co. v. Mills, 105 Ill. 63; Cleary v. Traction Co., 179 Pa. 526; Machen v. Ry. Co., 13 Pa. Superior Ct. 642; Bensing v. Ry. Co., 9 Pa. Superior Ct. 142.
    May 13, 1907:
   Opinion by

Me. Justice Fell,

One of the plaintiffs, Mary Ann Thomas, was a passenger on a car of the defendant going south on Tenth street. Willow street crosses Tenth street at right angles, and it is occupied 'almost entirely by the tracks of a steam railroad. It was the custom to stop all cars on the north side of this street in order that the conductor might go forward to the crossing and look for cars on the tracks of the steam railroad, and it was also the custom for passengers to get off the cars on the north side of the street. The testimony of a witness who lived at the corner of these streets was : “ There is alwayssomeonegetting off there on every car that stops there.” Before the car reached Willow street, the plaintiff signaled the conductor to stop. He rang the bell, jumped off the car while it was in motion, and ran forward to the crossing. The car came to a full stop, two passengers got off and the plaintiff was in the act of doing so when the car started and she was thrown and injured.

The only question raised by the appeal is whether judgment should have been entered for the defendant non obstante veredicto. The instruction under which the case was submitted was that a passenger on a street railway car is entitled to a reasonable opportunity to alight when the car stops for the purpose of letting off passengers, but that when it stops for some other purpose and a passenger is not invited to alight, he assumes the risk in attempting to do so. The question submitted was whether under the circumstances the plaintiff might reasonably assume that the stop was intended to give passengers an opportunity to alight. This'instruction was correct under the facts of the case and the question submitted was the crucial one. The plaintiff knew the locality and knew that the conductor had gone forward to look at the crossing, as it was his duty to do, and that he would signal the motorman to come on. She knew he was not in a position where he could observe the movements of passengers in the car, and that the attention of the motorman would be fixed on him. Their paramount duty was to guard against a collision at the crossing, and if the stop had been merely for the purpose of allowing the conductor time to reach and observe the tracks of the steam railroad, a passenger would have assumed the risk of alighting. But the car was stopped at the plaintiff’s request, or apparently it was. She testified that when she beckoned to the conductor to let her off, he pulled the bell strap and jumped off, and that she supposed the stop had been made to let her off. She could not under the circumstances be adjudged negligent in attempting to alight and she was entitled to a reasonable opportunity to do so. The case was, therefore, for the jury.

The judgment is affirmed.


author: Per Curiam,

text:
    Young v. Malone, Appellant.

      Mortgage — Foreclosure—Parties—Guardian and ward — Continuance of suit.

    Where a mortgage to a guardian of minor children is made payable when the children come of age, and foreclosure suit is brought by the guardian, the defendant cannot allege as a ground for continuance when the case is called for trial, that the minors had become of age, and that the right of action was in them.
    Argued April 22, 1907.
    Appeal, No. 132, Jan. T., 1906, by defendants, from order of O. P. Blair Co., Oct. T., 1903, No. 617, refusing a continuance in case of M. A. Young, Guardian of James P. Malone et al., v. C. B. Malone et al.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Scire facias sur mortgage.
    The opinion of the Supreme Court states the case.
    Yerdict and judgment for plaintiff. Defendant appealed.

      Error assigned amongst others was refusal of continuance.

      Harry A. McEadden, for appellants.

      Thomas H. Greevy, with him F. G. Patterson, and E. G. Brotherlin, for appellee.
    May 13, 1907:
   Per Curiam,

The mortgage on which suit was brought was made to the plaintiff as guardian of minor children named in it and was payable when they became of age. The defense which it was attempted to set up was that the persons named as minors had become of age and that the right of action was in them. When the case was called for trial the defendants moved for a continuance on this ground. The overruling of the motion is assigned for error. The pleadings showed prima facie a right of action in the plaintiff and this right could not be questioned by a motion for a continuance. There is no merit in any of the assignments of error.

The judgment is affirmed.


text:
    Trexler, Appellant, v. Reynolds.

      Judgment — Opening judgment — Sale—Issue of fact.

    An order making absolute a rule to open a judgment entered on a bond given to secure a part of the purchase money for land and certain personal property situated thereon, will be affirmed where it appears that there was testimony on behalf of the defendant that a part of such personal property had not been delivered to him, but had been removed by the plaintiffs, and converted to their own use. The dispute in such a case is as to what property was included in the sale, and the issue of fact thus raised is one on which a jury should pass.
    Argued April 22, 1907.
    Appeal, No. 331, Jan. T., 1906, by-plaintiff, from order of C. P. Huntingdon Co., Dec. T., 1905, No. 172, making absolute rule to open judgment in case of J. E. Trexler and J. L. Trexler v. H. P. Reynolds.
    Before Pell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to open judgment.
    The opinion of the Supreme Court states the case.

      Error assigned was the order of the court.

      H. H. Waite, for appellant.

      Thomas F. Bailey, with him Samuel I. Spyker and Chamles C. Brewster, for appellee.
    May 13, 1907:
   Per Curiam,

This appeal is from an order making absolute a rule to open a judgment, entered by confession on a bond given to secure a part of the purchase money for land and certain personal property situated thereon. There was testimony on behalf of the defendant that a part of the personal property which he had bought had not been delivered to him, but had been removed by the plaintiffs and converted to their use. The dispute between the parties was as to what property was included in the sale, and the issue of fact thus raised was one on which a jury should pass.

The order of the court is affirmed.


text:
    Nittany Valley Railroad Company v. Empire Steel & Iron Company, Appellant.

      Equity■ — Jurisdiction—Corporations—Protection of franchises — Remedy at law.

    To warrant the intervention of equity for the protection of a franchise it is not necessary that the owner of the franchise should have first established his right by action at law. The right for whose protection the aid of equity is invoked should, however, be coupled with possession.
    A court of equity has power to hear and determine a case where a landowner would seek to interfere with the operation of a railroad on the ground of some technical defect in the title of the company to its right of way. The remedy at law is totally inadequate, and to compel the railroad company to suspend its operations until its right could be first determined at law would be destructive of its rights and work great damage to the company and the public.

      Railroads — Mortgage—Eminent domain — Construction of tracks— Equity.

    Where a railroad with the right of eminent domain lays tracks upon the land of another with the landowner’s consent and approval, a prior mortgage executed by the landowner does not cover the tracks and roadbed of the railroad; and this is the case although the land was not condemned under the right of eminent domain, and no money damages were in fact paid.
    Argued April 23, 1907.
    Appeal, No. 82, Jan. T., 1907, by defendant, from decree of C. P. Centre Co., Nov. T., 1899, No. 2, on bill in equity in case of Nittany Valley Railroad Company v. The Empire Steel & Iron Company, Lessee, The American Bonding & Trust Company, Lessor, and the Nittany Iron Company.
    Before Pell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    McClure, P. J., filed the following opinion:
    1. The plaintiff is a corporation duly incorporated under the laws of Pennsylvania for the purpose of constructing, maintaining and operating a railroad in the county of Centre from a point near Bellefonte on the Bellefonte, Nittany &
      Lemont Railroad to the ore banks in the Nittany Yalley near Zion.
    2. During the year 1887, the railroad company constructed its road from a point on the Beliefonte, Nittany and Lemont road south of the furnace plant known as Yalentine Company’s furnace and ending at the ore banks near Zion, a distance of about five miles; and in the spring of 1888, at the request of the Yalentine Ore Land Association, the then owner in fee of the furnace property, the railroad was extended through the furnace property and another connection made with the Bellefonte, Nittany & Lemont Railroad north of the furnace. This was built under an arrangement between the ore land association and the railroad company by which the tracks when built were to be used in common by both, and that upon payment of the note given by the ore land association for the cost of the road the branch was to become the property of the ore land association with the right of the railroad company to use it perpetually free of charge. This branch and sidings . - accordingly built by the railroad' company at a cost of about $16,000. The ore land association never paid the cost of construction. It was borne entirely by the railroad company.
    3. This road was fully equipped by the plaintiff with engines and other rolling stock, and was used uninterruptedly by the railroad company for all purposes including the hauling of coal, coke and iron ore to and from the furnace erected on the ore land association’s property down until April 28, 1899, when the Empire Steel & Iron Company came into possession of the plant and took possession of that portion of the railroad which was upon what is known as the furnace property. Both the Centre Iron Company and the Yalentine Iron Company, the prior lessees and operators of the furnace, recognized the rights of the plaintiff, its title to the railroad and its equipment and to payment of its charges for all traffic received from them in the operation of the furnace.

      4. Prior to and on August 2, 1886, Jacob D. Yalentine and others were the owners of this tract known as the furnace property upon which were erected an old iron furnace, rolling mill, forge and other buildings, with horse railroad tracks running from the furnace to connect with the Bellefonte & Snow Shoe Railroad. On August 2,1886, Yalentine and others conveyed the property to Edmund Blanchard and "William M. Stewart for the consideration of $435,000, as trustees for the Yalentine Ore Land Association, and the ore land association went into possession of the premises conveyed in the deed. On the same day Blanchard and Stewart executed and delivered to the Fidelity Insurance, Trust & Safe Deposit Company, trustee, a mortgage on this property to secure the payment of $600,000 in bonds. Default having been made in the payment of the bonds, foreclosure proceedings were instituted and the property sold by the sheriff to the Fidelity Insurance, Trust & Safe Deposit Company, trustee.
    5. On February 26, 1891, the Fidelity Insurance, Trust & Safe Deposit Company, trustee, by deed of that date, conveyed the property in fee to the Yalentine Iron Company, and the grantee, about the time of the execution and delivery of the deed, entered into possession of the premises. April 14,1891, the Yalentine Iron Company, by indenture of that date, mortgaged the property to the Fidelity Insurance, Trust & Safe Deposit Company to secure the payment of $75,000 of the bonds of the company. This mortgage was satisfied on May 18, 1896, and on May 1, 1896, a new mortgage was executed and delivered to John M. Dale, trustee, upon the same premises to secure new bonds of the company. A judgment was obtained by Robert Yalentine against the Yalentine Iron Company to No. 107, November Term, 1897, in the court of common pleas of Center county, for $90,000. An execution was issued upon this judgment and the real estate was sold to the plaintiff in the writ. The said Robert Yalentine and wife, by indenture dated December 1, 1898, granted and confirmed the premises conveyed to him by the sheriff’s deed to the American Bonding & Trust Company of Baltimore City, anothér of the defendants named in the bill in equity. The Empire Steel & Iron Company became the lessee of the property under Robert Yalentine and the American Bonding & Trust Company. This company was in possession as lessee at the time of the filing of the bill in this case, but has long ceased to operate ■the plant, and since the filing of this bill Robert Yalentine has died.
    6. Subsequently, default having been made in the payment of the $75,000 of new bonds secured by the mortgage of the Yalentine Iron Company to John M. Dale, trustee, proceedings to foreclose the said mortgage were instituted, judgment obtained, a levari facias issued and the property sold by the sheriff to the Commonwealth Trust Company; and the Commonwealth Trust Company, by the deed dated May 1, 1902, granted and conveyed in fee unto the Nittany Iron Company, in consideration of $90,000, all of the premises constituting the iron works and furnace property. The Nittanjr Iron Company, upon assuming control of the furnace property,. prevented the plaintiff from using the tracks built by it through the yards of the furnace, or to move traffic within the limits of the furnace property, as the Empire Steel & Iron Company had done before them.
    The plaintiff company, contending that it is the sole and exclusive owner of the franchises, tracks, sidings, switches, rolling stock and equipment of the railroad from its beginning on the Bellefonte, Nittany & Lemont Railroad, north, of the furnace to the eastern terminus at the ore banks near Zion, and that it has the sole and exclusive right to operate the same without any interference on the part of the defendants, or any of them, and that as a common carrier it is obliged to accept and carry safely all freight and other traffic offered by the general public, and that by reason of the acts of the defendants it was unable to perform its duty, and has suffered great injury and damage by reason of the unlawful acts, filed this bill in equity requesting an injunction to issue restraining the defendants from further interfering with it in operating and carrying on the business of the railroad, and asking that an account be stated of its damages sustained. By answers filed the defendants set up title in the tracks running through the furnace property, and claim the right to the sole and exclusive possession of them.
    The above is a general statement of the material facts involved in the controversy, which are not seriously in dispute.
    DISCUSSION.
    At the hearing it was contended that tbe court was without jurisdiction as the bill is an ejectment bill, and the plaintiff is seeking to have a court of equity determine a pure question of law, and that before the plaintiff is entitled to the relief sought it must first establish, its right to the tracks by an action at law. It was admitted at the argument that the case as presented by the offers and testimony was different from that which appeared on the face of the averments of the bill, which is that the defendants were equitably estopped from setting up a title to the tracks in dispute. Contention is made further that while the court would entertain jurisdiction to inquire into the validity of the alleged equitable estoppel, still, as here, the alleged estoppel is invalid and ineffectual as against the defendants, the court should dismiss the bill on the merits. We have given the question of jurisdiction considerable thought, and have concluded that the court has jurisdiction of this bill on a well-defined equitable ground, namely, the violation of a franchise conferred by legislative authority. As the value of a franchise is dependent upon its exclusive use and possession, it may be protected on the ground of the inadequacy of the legal remedy and the probability of thus avoiding a multiplicity of suits. In England it was formerly required that the plaintiff first establish his right at law, but in this country it is well established that to warrant the interposition of equity for the protection of franchises it is not necessary that the owner of a franchise should have first established his right by action at law. The right for whose protection the aid of equity is invoked should, however, be coupled with possession: High on Injunctions, sec. 897, etc.
    In a case where the public rights or private rights secured by statute and by contract are invaded and am injunction is asked for in order to protect them, no question of the amount of damages is raised, but simply one of right. The courts interfere to prevent wrong of a repeated and continuing character, or which occasion damages which are estimable only by conjecture and not by any accurate standard : Commonwealth v. Pittsburg & Connellsville Railroad Co., 24 Pa. 159; Walters v. McElroy, 151 Pa. 549; Shamokin Boro. v. Electric Railway Co., 196 Pa. 166.
    Here the plaintiff had been for years in the exercise of its franchises without molestation on the part of the owners of the furnace, and was in possession of them at the time of the wrongs complained of in the bill. We think it is clear that a court of equity has power to hear and determine a case where a landowner would seek to interfere with the operation of a railroad on the ground of some technical defect in the title of the company to its right of way. The remedy at law is totally inadequate, and to compel the railroad company to suspend its operations until its right could be first determined at law, would be destructive of its rights and work great damage to the company and the public. The motion to dismiss the bill for the want of jurisdiction is accordingly overruled.
    This brings us to the important question in the case: whether or not the title to the railroad track passed to the defendant iron company by virtue of the sale of the furnace property under the mortgage of Blanchard and Stewart to the Fidelity Insurance Company, the subsequent sale of the property by the-sheriff and the mesne conveyances by which title to the furnace property'' became vested in the iron company. There is no question that the railroad tracks "were put upon this property as a permanent improvement, and had they been placed there by a private individual, or a company without the right of eminent domain, they would have become attached to the real estate and passed by the sale under the mortgage to the sheriff’s vendee : Roberts v. Dauphin Deposit Bank, 19 Pa. 71; Albert v. Uhrich, 180 Pa. 283; Silliman v. Whitmer, 11 Pa. Superior Ct. 243; s. c. 196 Pa. 363. And the same might be true even if the company had the right of eminent domain but was precluded by statute or otherwise from condemning the property upon which the tracks were laid. In Price v. Weehawken Ferry Company, 31 N. J. Eq. 31, the railroad company constructed a track over a part of certain premises which were covered by a prior mortgage duly recorded. The track was not built under condemnation proceedings in eminent domain, but under a grant of right of way by the mortgagor over lands where there was an express inhibition in the company’s charter against occupying them, and it was held that the company had no right to have a track put on the premises by them reserved from a sale under foreclosure of the mortgage. The same court, however, held that where a railroad company having power to acquire lands for its use has been permitted by the owner to enter into possession and construct its track upon the premises without compensation first made, in subsequent proceedings to condemn the measure of compensation is the value of the land and damages at the time of the entry and interest from such entry, irrespective of the improvements afterwards put upon it by the company, and that on foreclosure of a prior mortgage the mortgagee was not entitled to the value of the improvements : North Hudson County R. R. Co. v. Booraem, 28 N. J. Eq. 450. In St. Johnsbury, etc., R. R. Co. v. Willard, 61 Vermont, 134, the Essex County Railroad Company by virtue of some arrangement with the mortgagor who was in possession entered upon the land and constructed and operated its railroad. Twelve years afterwards Willard became the owner of the mortgage, foreclosed it and was put in possession. The company then petitioned to condemn the land, and Willard claimed his decree of foreclosure gave him title to the corpus of the railroad itself and in consequence he was entitled to its value as well as to the value of the land taken for its construction as damages. The court held the company was not a trespasser as to either mortgagor or mortgagee and said: “ In the circumstances it is clear that the owner is not entitled to the improvements, and cannot have their value as damages. He has no claim in justice to have expenditures for such a purpose inure to his benefit. He is entitled to be paid the damage he has sustained and nothing more. The maxim quicquid plantatur solo, solo cedit, does not apply. The maxim has always had exceptions, and they increase with the ever varying necessities and exigencies of society.
    “ The improvements in question were made for a public use by one lawfully in possession, with the right to condemn to such use at any time; and herein lies the distinction between this case and Price v. Weehawken Ferry Co., 31 N. J. Eq. 31, relied upon by the defendant. In that case the company had no right to take the land or compensation, and the court said that therefore the maxim above referred to applied, but said it does not apply when the right to take exists.” This is in harmony with the decisions of our Supreme Court. See Justice v. Nesquehoning Valley R. R. Co., 87 Pa. 28, which is cited by the Vermont court in support of its position.
    Here the tracks of the plaintiff were placed upon the ground with the consent and at the request of the Valentine Ore Land Association the then owner of the fee. The land upon which they were located was appropriated for public use and all that remained to the landowner was its claim for damages. Wadhams v. Lackawanna & Bloomsburg E. E. Co., 42 Pa. 303; Beale v. Penna. E. E. Co., 86 Pa. 509. The damages, if any were occasioned, belonged to the association. They were a personal claim of the owner; did not run with the land nor would they pass by its deed: McFadden v. Johnson, 72 Pa. 335; Davis v. Titusville, etc., Ry. Co., 114 Pa. 308. They were subject, however, to the rights of the mortgagee to have them applied to its debt: Elliott on Eailroads, vol. 3, p. 1452. The right of the mortgagee is not to hold the tracks and roadbed as an improvement to the property, but to pursue the damages occasioned by the taking of the property: Jones on Mortgages, sec. 681 A. If the mortgagors and mortgagees had joined in a release it would not have operated as a conveyance of the right of way to the plaintiff, but simply as a discharge of the damages incurred by the construction and operation of the road. The title of the plaintiff came by its original entry upon the land with the consent of the owners: Lawrence’s Appeal, 78 Pa. 365.
    When the mortgage was given by the Valentine Iron Company in 1896, to JohnM. Dale, trustee, the railroad was located and had been in operation for many years over this land with the consent, knowledge and approval of the owners of the fee. Evidence was also offered to show that by correspondence a year or two after that Dale had personal knowledge of the existence of the road and the claims of ownership by the plaintiff company. Notice to the trustee would, of course, be notice to the bondholders. The correspondence we do not consider of importance, as the trustee was bound to take notice of the rights of the company as shown by the operation of the railroad upon the land by the plaintiff. 'Mr. Justice Shiras, in delivering the opinion of the court in Roberts v. Northern Pacific R. R. Co., 158 U. S. 1, on page ten, says: “ It is well settled that where a railroad company having the power of. eminent domain has entered into actual possession of land necessary for its corporate purposes, whether with or without the consent of the owner of such lands, a subsequent vendee of the latter takes the land subject to the burthen of the railroad, and the right to payment from the railroad company, if it entered by virtue of an agreement to pay, or to damages, if the entry was unauthorized, belongs to the owner at the time the railroad company took possession.” And in support of this statement he cites Schuylkill, etc., Nav. Co. v. Decker, 2 Watts, 343 and McFadden v. Johnson, 72 Pa. 335. We do not see how Dale or the Nittany Iron Company can be considered to be innocent purchasers for value without notice.
    No doubt at the time of the construction of the road it was thought to be of great benefit to the owner of the fee as well as the railroad company to have adequate railroad facilities for the hauling of freight to and from the furnace property, and that when all the advantages and disadvantages of the locating of the railroad upon the property were considered that the owner of the fee simple title, the Yalentine Ore Land Association, had no claim for damages by reason of the location, construction and operation of the road. This company never set up any claim for damages, nor did its lessees, the Centre Iron Company, or its successor in title, the Yalentine Iron Company, the purchaser at the sale on the mortgage, during a period of ten years of continuous operation of the railroad; and it must be apparent that if they had any claim for damages by reason of the construction of the road, they waived it. Furthermore, the Yalentine Iron Company, the purchaser at the judicial sale under the mortgage, recognized the title of the railroad company to the tracks in dispute and acquiesced in their use and operation of the road while operating the furnace.
    CONCLUSIONS OF LAW.
    We accordingly conclude as matter of law that an injunction should be issued restraining the defendant, the Nittany Iron Company, from interfering with the corporate rights and franchises of the plaintiff in operating the main tracks through the furnace property, and that the plaintiff be placed in possession thereof.
    2. That an account be stated of the damages sustained by the plaintiff on account of the unlawful acts of the defendant; the amount thereof to be ascertained upon final hearing of the parties.

      Error assigned was the decree of the court.

      John Blanchard, with him Henry G. Quigley and Edmund Blanchard, for appellants.
    The court had no jurisdiction: Grubb’s App., 90 Pa. 228; Washburn’s App., 105 Pa. 480; Ferguson’s App., 117 Pa. 426; Williams v. Fowler, 201 Pa. 336; North Pennsylvania Coal Co. v. Snowden, 42 Pa. 488; Norris’s App., 64 Pa. 275; Tillmes v. Marsh, 67 Pa. 507; Ege v. Kille, 84 Pa. 333; Railway Co. v. Peet, 152 Pa. 488; Wiser’s App., 9 W. N. C. 508; Pittsburg, etc., Droveyard Co.’s App., 123 Pa. 250.
    The bill should have been dismissed upon the merits: Washburn v. Copeland, 116 Mass. 233; Martin v. Jackson, 27 Pa. 504; Logan v. Eva, 144 Pa. 312; McCormick v. McMurtrie, 4 Watts, 192; Albert v. Uhrich, 180 Pa. 283; Sillman v. Whitmer, 11 Pa. Superior Ct. 243.

      John G. Love with him J. A. B. Miller, for appellees.
    The number of questions involved and the different defendants to the suit, and the question of accounting, in order to save multiplicity of actions, confers upon the courts equity jurisdiction : Woodward v. Tudor, 81* Pa. 382; Miller v. Miller, 60 Pa. 16; Big Mountain Improvement Co.’s App., 54 Pa. 361; Pennsylvania R. R. Co.’s App., 80 Pa. 265; Johnston v. Price, 172 Pa. 427; Miller’s Appeal, 84 Pa. 391; Cumberland Valley R. R. Co. v. McLanahan, 59 Pa. 23; Putnam v. Tyler, 117 Pa. 570; Logan v. Gardner, 136 Pa. 588; s. c. 142 Pa. 442; Chapman v. Chapman, 59 Pa. 214.
    Equitable jurisdiction does not depend on the want of a common-law remedy, but may be sustained on the ground that it is the most convenient remedy: Johnston v. Price, 172 Pa. 427; Brush Electric Co.’s Appeal, 114 Pa. 574; Penna. R. R. Co. v. Bogert, 209 Pa. 589; Gray v. Citizens’ Gas Co., 206 Pa. 303.
    It is the duty of purchasers of real estate to make inquiry respecting the rights of parties in possession, and, failing to do so, 'they are affected with constructive notice of such facts as would have come to their knowledge in the proper discharge of their duty, and purchasers who fail to make such inquiry are not innocent purchasers for value: Jamison v. Dimock, 95 Pa. 52; Sill v. Swackhammer, 103 Pa. 7; Miller v. Baker, 160 Pa. 172; Sayers v. Phillips, 5 Pa. Superior Ct. 343; Snively v. Hitechew, 59 Pa. 49.

      May 13, 1907:
   Per Curiam,

The decree entered in this case is affirmed at the cost of the appellant on the findings of fact and law by Judge McClure, specially presiding.


author: Pee Cueiam,

text:
    Commonwealth ex rel. v. Crow.

      Quo warranto — Parties—Senatorial apportionment — Act of February 17, 1906, P. L. 31 — Constitutional law.

    A person claiming to have been rightfully elected to the office of senator cannot issue and maintain a quo warranto in the name of the commonwealth on his own relation, to test the constitutionality of the Act of February 17, 1906, P. L. 31, relating to senatorial apportionment.
    In a suit properly brought the Supreme Court has general jurisdiction to consider and pass upon the constitutionality of the Act of February 17, 1906, P. LI 31.
    Argued April 1,1907.
    Commonwealth ex rel. Edward M. Biddle, Jr., v. William E. Crow. Miscellaneous docket, No. 2, No. 292.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Writ quashed.
    Suggestion for writ of quo warranto.
    The suggestion, set out that the relator is above the age of twenty-five years, and for the past four years has been a citizen of the state and an inhabitant of the county of Cumberland ; that at the general election on November 6, 1906, he was duly elected to the office of senator in the general assembly for the thirty-second district, composed of the counties of Adams and Cumberland ; that the return .judges of said district issued a certificate of election to him, and forwarded a similar certificate to the secretary of the commonwealth, by whom it was delivered on January Í, 1907, to the senate of Pennsylvania, where it has ever since remained.
    That the respondent, an inhabitant of Fayette county, has since January 1, 1907, used and exercised the office of senator from the thirty-second senatorial district, under color of the Act of February 17, 1906, P. L. 31, making the' county of Fayette the thirty-second senatorial district, which act relator alleges is unconstitutional and void.
    Relator therefore asked for a writ of quo warranto against the respondent.
    The answer admitted the age and residence of relator ; denied the validity of relator’s election, while not denying said election ; asserted the legality of respondent’s election; set up his admission to the senate and its refusal to admit relator; alleged that relator has no right to file the suggestion for the writ of quo warranto ; denied the jurisdiction of the court to inquire into the questions raised by the suggestion and writ, and asserted that the Act of February 17, 1906, P. L. 31, is constitutional.

      E. M. Biddle, Jr., with him 8. 8. Rupp and F. B. Sellers, Jr., for relator.
    The Act of February 17, 1906, P. L. 31, is unconstitutional : Com. v. Butler, 99 Pa. 535; Sharpless v. Mayor, etc., of Philadelphia, 21 Pa. 147; Com. v. Wise, 216 Pa. 152; Endlich on Int. of Stat, 712; Com. v. Moir, 199 Pa. 534; Page v. Allen, 58 Pa. 338.
    The court has jurisdiction ; Com. v. Denworth, 145 Pa. 172; Com. v. Moir, 199 Pa. 534.
    The relator has standing to maintain this action ; Murphy v. Farmers’ Bank, 20 Pa. 415; Buck Mountain Coal Co. v. Lehigh Coal & Nav. Co., 50 Pa. 91; Com. v. Cluley, 56 Pa. 270; Com. v. Dillon, 81* Pa. 41; Barnum v. Gilman, 27 Minn. 466 (8 N. W. Repr. 375); Com. v. McCarter, 98 Pa. 607.

      John Gr. Johnson, for respondent.
    The senate of Pennsylvania being the sole judge of the election and qualification of its own members, having .admitted the respondent as a senator, duly elected from the thirty-second senatorial district, and having refused to admit the relator, it is impossible for him by virtue of the recent proceedings to be installed into the office of senator :* McNeill’s Contested Election, 111 Pa. 235.
    A writ of quo warranto to test the constitutionality of an act under which the respondent has been received by the senate as a member thereof, can only be issued at the instance of the attorney general: Com. v. Burrell, 7 Pa. 34; Murphy v. Farmers’ Bank of Schuylkill County, 20 Pa. 415; Clark v. Com., 29 Pa. 129; Buck Mountain Coal Co. v. Lehigh Coal & Nav. Co., 50 Pa. 91; Com. v. Dillon, 81* Pa. 41; Coyle v. Com., 104 Pa. 117.
    The only cases in which a writ of quo warranto may be issued at the instance of a private relator, to test the right to an office, are those in which the relator, by reason thereof, may be installed into such office : Com. v. Small, 26 Pa. 31; King v. Mayor of Colchester, 2 T. R. 259; King v. Mayor of Oxford, 6 Ad. & El. 349; King v. Mayor of Winchester, 7 Ad. & El. 215; Queen v. Phippen, 7 Ad. & El. 966; Com. v. Cluley, 56 Pa. 270; Com. v. McCarter, 98 Pa. 607.
    May 13, 1907 :
   Pee Cueiam,

The substantial question involved is the constitutionality of the senatorial apportionment by the Act of February 17, 1906, P. L. 31. On the general jurisdiction to consider and pass upon that question we entertain no doubt. The judicial power extends to the review of all legislative acts for the comparison of their provisions with the requirements and prohibitions of the constitution, and there is no exception expressed or implied in regard to statutes of apportionment. The constitution requires that the state be divided into fifty senatorial districts, and if, for illustration, the apportioning statute created sixty or 100 districts there could be no question of the power and duty of the court to declare the statute void. Other transgressions may be less obvious, but are none the less open to question and decision.

The case, however, comes before us in the form of a writ of quo warranto issued in the name of the commonwealth, but on the relation of a private citizen. It is true that he claims to have been rightfully elected to the office of senator for the thirty-second district, an office now occupied by the respondent. But the majority of the court are of opinion that the relator has no such interest as to give him standing to maintain a writ. Even a judgment of ouster against the respondent would not give the office to the relator, for his own qualifications and the regularity and'validity of his election would still be subject to the investigation and judgment of the senate, which is the ultimate and supreme tribunal on these matters.

The writ is therefore quashed.


author: Mr. Justice Stewart,

text:
    Edison Electric Illuminating Company, Appellant, v. Tamaqua Light, Heat & Power Company.

      Equity — Equity practice — Evidence—Findings of fact — Electric light companies.

    On a bill in equity by one electric light company against another electric light company, to restrain the erection of poles and the stringing of wires on the same side of a street already occupied by the poles and wires of the plaintiff, a finding by the court below based upon sufficient evidence, that the wires of the defendant were sufficiently distant from the wires of the plaintiff and were sufficiently secured, so as not to endanger the public, or interfere with the plaintiff, will be sustained by the appellate court in the absence of manifest error.
    Argued F¿b. 19, 1907.
    Appeal, No. 380, Jan. T., 1907, by plaintiff, from decree of C. P. Schuylkill Co., Sept. T., 1905, No. 2, dismissing bill in equity in case of the Edison Electric Illuminating Company of Tamaqua v. The Tamaqua Light, Heat & Power Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. ■ Before Bechtel, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned among others was decree dismissing the bill.

      Cyrus G. Derr, with him F. P. Krebs, B. H. Koch and F. G. Fcvrguhar, for appellants,
    cited: Edison Electric Light & Power Co. v. Merchants & Manufacturers Electric Light, Heat & Power Co., 200 Pa. 209.

      A. W. Sohdlck, with him J. O. TJbrioh, for appellees,
    cited: Scranton Electric Light, etc., Co. v. Scranton Illuminating, etc., Co., 3 Pa. C. C. Rep. 628; Cent. Penna. Tel. & Supply Co. v. Wilkes-Barre, etc., Ry. Co., 11 Pa. C. C. Rep. 417; Schuylkill Traction Co. v. Shenandoah Borough, 9 Pa. Dist. Rep. 77.
    May 20, 1907:
   . Opinion by

Mr. Justice Stewart,

This is a controversy between two rival electric light companies. The Tamaqua Light, Heat & Power Company, here the appellee, in constructing its overhead line occupied in many places with its poles and wires the same side of the street which was then, and had been for many years previous, occupied by the Edison Illuminating Company of Tamaqua with its poles and wires. The latter company filed its bill alleging that the effect of the occupancy by the former in the manner undertaken and proposed, would render access to plaintiff’s wires dangerous, and be a source of danger to the public as well. The bill prayed for an injunction to restrain the defendant company from erecting its poles and stringing its wires on the same side of the street where poles and wires were maintained by the plaintiff company, or in any way interfering with the latter’s poles, wires, right of way, franchise or property. The answer denied any interference, or that the construction of defendant’s line in the way proposed would make access to plaintiff’s wires dangerous, or increase the danger in any way. A preliminary injunction was granted as prayed for, which upon final hearing was dissolved. The bill was filed before defendant’s line was fully constructed. During the course of the construction much of the work was temporary and provisional in its character. In view of the fact that the preliminary injunction secured protection to the complaining party against any direct interference, the court very properly continued the proceeding until final completion of defendant’s line, when it could be certainly ascertained what, if any, injury would result. Upon final hearing the findings and conclusions of the court were adverse to the plaintiff’s contention, and the bill was accordingly dismissed. We are here asked to reverse these findings on the ground that they rested on a misapprehension of the evidence, or were regardless of it, and in the latter case arbitrary. The interference complained of is twofold : first, introducing elements of danger which increase the hazard to life and property; and, second, snch appropriation of plaintiff’s right of way as will prevent an enlargement of plaintiff’s line to accommodate a possible or probable increase of business. Under the first, these are specifically complained of : (1) stringing the wires of defendant company above those of the plaintiff without sufficient elevation ; (2) conducting the wires of the plaintiff through split insulators, and (3) placing defendant’s feed wires and brackets so close to the wires of the plaintiff as to make them a source of danger. Each of these alleged interferences was specifically passed on by the court, and the findings with respect to them are clear and explicit. In'the construction of defendant’s fine, the general scheme contemplated the stringing of the wires some four or five feet above those of the plaintiff; and this distance has been fairly well observed, except in several places where the distance that separates them is something less than two feet. It requires no expert testimony to persuade anyone that the danger of contact between wires is lessened as the elevation of one above the other is increased. It is quite as evident that no particular elevation of one wire over another will secure against possible contact. The elements will disport with wires just as they do with things even more Securely and permanently established. The question here for the court to determine was, whether the defendant’s line at its lowest elevation, or where the lines were in closest proximity, endangered the plaintiff’s property and the safety of its employees and the public. The witness whose testimony is specially relied upon to establish the plaintiff’s proposition, was Irvin E. Prentiss, an expert. He testified that in two places the defendant’s line was a continuing menace, inasmuch as in these places, the wires were brought within two feet of each other. He was asked: “ What effect would the wires of the new company have upon the wires of the old company at that distance ? ” To this he replied: “None at all if they would stay there.” Upon cross-examination this was repeated. He was asked, “ If the wires stay where they are, it would not effect the system ? ” His answer was: “Not if they are kept clear, no sir.” Except for the liability of the upper wire to sag from storm or sleet, this witness saw no danger in the proximity of the Avires. That no uniform standard of distance is observed with respect to the placing of wires, also clearly appears in the testimony of this witness. He was asked: “ Have you seen that kind of construction in different towns where the wires are much closer than this if vertical? A. Yes, sir, I presume I have. Q. How close have you seen them together vertical ? A. I have seen them right close together. Q. How close ? A. Six or seven inches. Q. Wires of different companies ? A. Yes, sir.” The only danger this witness saw was in increased liability to contact of wires through storm and sleet. May this increase of risk be more than counterbalanced by greater precaution in the construction and support at the point where the lesser distance separates? That it could, was unquestionably the view of this expert, and all the other witnesses in the case; and it stands to reason that it is so. It became then a question of adequate construction and support. Acting upon the criticism of this expert witness for the plaintiff, the defendant company at once set about a correction of their line in the respect indicated, not by increasing the distance between the wires, but by securing, insulating and bracketing the wires. Whether this was accomplished became the only question. If the wires of defendant company, where they were but two feet from the wires of the plaintiff, were so braced, insulated and bracketed, as to be no more liable to be brought in contact with the latter by sagging, than the wires which were separated by the greater distance, and admitted of safe access to plaintiff’s wires, the plaintiff’s complaint was without basis. On this question the evidence of defendant’s witnesses was explicit and direct. However it may have conflicted with the testimony offered by plaintiff, it was convincing to the mind of the learned judge who heard the case. It was for him, not for us, to decide where the preponderance was. In refusing to find as requested by plaintiff, that defendant’s line was an interference with plaintiff’s because of the close proximity, he was amply sustained by the evidence. With respect to the interference complained of in conducting the plaintiff’s wires, where attached to the poles of defendant through split insulators, it is enough to say that this method was approved by Mr. Prentiss, the expert witness called by plaintiff, and it was because of his approval that it was substituted for the method originally adopted. As to the way in which the feed wires and brackets of defendant’s street lamps were put up, while plaintiff’s witnesses testified that they were too close to plaintiff’s wires for safety, the testimony on the other side was that if increased danger had resulted therefrom, it had been avoided by additional supports, such as cross-arms, and increased insulation since provided. It was a clear difference of opinion as to results. A' finding either way with respect to it would have found support in the evidence. The conclusion reached by the learned judge from a consideration of all the evidence was, that defendant’s line as they had constructed it, in no way interfered with the plaintiff; that with the exercise of that care and diligence which should always be observed where wires of different systems are liable to be brought in contact, the two lines may be operated with no more danger than if a uniform distance of four or five feet from each other had been observed. It is enough to know that this conclusion rests upon adequate evidence. Quite as much may be said with respect to the court’s refusal to find that defendant’s appropriation does not leave sufficient room for enlargement of plaintiff’s facilities. The learned judge had the whole situation before him. The question here presented was one that could only be determined by careful consideration of every feature of the case. The finding does not accord with the testimony of the only witness called by the plaintiff on this branch of the case, and it may be that be is not specially contradicted by any other; but we cannot say that the finding is not justified by the general evidence as to the construction of the defendant’s system in its relation to the plaintiff’s poles and wires. Nothing short of clear error would call for our interference with the finding, and this does not appear.

The decree of the court below is affirmed, and the appeal is dismissed at the costs of appellants.


author: Mr. Justice Potter,

text:
    Butler v. Kemmerer, Appellant.
    • Contract — Offer—Acceptance—Terms—Price.
    To form the basis of a legal obligation, an offer must be so complete that upon acceptance an agreement is formed which contains all the terms necessary to determine whether the contract has been performed or not.
    Price is as essential as any other of the terms of a contract, and without this agreed upon no contract exists.
    A promise made by a heavy stockholder of a corporation to an officer of the company that if any profit is made out of the business of the company, he will divide such profit upon a very liberal basis with the officer, is too indefinite and uncertain to be enforced.
    Argued March 11,1907.
    Appeal, No. 285, Jan. T., 1906, by defendant, from judgment of C. P. Carbon Co., Oct. T., 1905, No. 24, on verdict for plaintiff in case of EL A. Butler v. M. S. Kemmerer.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Assumpsit on an alleged contract to share profits. Before EIeydt, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned among others was in refusing binding instructions for defendant.

      John McGahren and John G. Johnson, with them W. W. ■ Watson, William G. Freymam, and E. O. Nothsteim,, for appellant.
    The conversations testified to by the plaintiff did not constitute a contract and it was the duty of the court to determine the meaning and pass upon the legal effect of it: Brown v. Finney, 53 Pa. 373; MacMackin v. Timmins, 14 W. N. C. 318; Wistar’s App., 80 Pa. 484; Penn Twp. School Dist. v. Snyder, 5 Pa. Superior Ct. 228; Purves’s Estate, 196 Pa. 438; Graham v. Graham’s Exrs., 34 Pa. 475; Wall’s Appeal, 111 Pa. 460; Pollock v. Ray, 85 Pa. 428; Smith v. Ankrim, 13 S. & R. 39; Sherman v. Kitsmiller, 17 S. & R. 45; Mays v. Patterson, 20 Pa. Superior Ct. 92; United Press v. N. Y. Press Co., 53 L. R. A. 288; Scott v. Fuller, 3 P. & W. 55; Thompson v. Stevens, 71 Pa. 161.

      Edward Harney and LairdH. Barber, with them Frederick Bertolette, for appellee.
    The contract was not uncertain: Weaver v. Wood, 9 Pa. 220; Thompson v. Stevens, 71 Pa. 161; Cottrell’s Est., 2 W. N. C. 83; Harper’s Est., 196 Pa. 137; Sutliff v. Seidenberg, 132 Cal. 63 (64 Pac. Repr. 131); Elder v. Robinson, 19 Pa. 364; Pennsylvania Co. v. Dolan, 6 Ind. App. 109 (32 N. E. Repr. 802); Minnesota Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85 (43 N. E. Repr. 774).
    May 20, 1907:
   Opinion by

Mr. Justice Potter,

The inquiry which meets us on the threshold of this case is whether or not the alleged contract between the parties was complete. The element which is lacking is that of price or basis upon which, under the alleged agreement, the profit accruing to the defendant from the business was to be divided. The plaintiff and defendant were in no sense of the word partners. In 1890, H. A. Butler, the plaintiff, became private secretary of M. S. Kemmerer, the defendant, at a yearly salary of $1,500, and continued to act in .that capacity up to the time of the bringing of this suit. Mr. Kemmerer was at that time largely interested as a stockholder in the Carbon Iron and Pipe Company, Limited, which was engaged in the manufacture of pig iron at Parryville. In 1891 the business of this concern was wound up, and all its assets were transferred to, and its liabilities were assumed by, Mr. Kemmerer. On January 5, 1892, The Carbon Iron and Steel Company, Limited, was organized as the successor of the former company, with a capital stock of $250,000, of which $230,000 was duly subscribed by Mr. Kemmerer, $50,000 in cash, and the balance in real and personal property, at a valuation approved by all the members of the company.

In addition to his duties as private secretary to Mr. Kemmerer, the plaintiff was appointed secretary and treasurer of the steel company. The controversy in this case grows out of the subsequent relations between the plaintiff and defendant, with regard to the management of the business of the company. The claim made by Mr. Butler is a peculiar one. It rests upon services which were rendered as an employee of the steel company, but as Mr. Kemmerer was the principal stockholder and was very largely interested therein, the services to the company inured indirectly to the benefit of Mr. Kemmerer individually.

It appears from the evidence that on September 4, 1893, Mr. Butler wrote a letter to Mr. Kemmerer, in which he stated that his position lacked the permanence he would like; and that owing to his lack of capital, he could not hope to hold any very extensive interest in as large an enterprise as a furnace plant; and that he would feel safer if associated with something of less financial proportions. He then suggested that the firm of H. A. Butler & Co. be established, with a capital of $20,000 or $25,000, of which he could hold a one-half interest ; this to include a store, an iron wharf, and a general commission business for the sale of grain, hay, lumber and other supplies. He stated that this would, in the whole, make a very safe and clean business, and that he would much prefer to have a larger interest in one such enterprise than to hold a number of smaller interests in several different concerns. The arrangement which he asked for in this connection did not contemplate the contribution of any money by himself, but he asked that he be credited upon the books with a one-half interest in the capital stock, and charged with the same amount upon the books as a loan.

The suggestion of Mr. Butler, as contained in this letter to Mr. Kemmerer, was not acceptable to the latter. Mr. Butler testifies that Mr. Kemmerer said to him that he preferred that his time and attention should be given to the general conduct of the business. That if this were done, he should be well compensated, and that if there were any profits made in the business, he would divide them upon a very liberal basis with Mr. Butler. The plaintiff did continue to devote his time and services to the conduct of the business of the steel company, but not exclusively by any means, for he had sufficient leisure to enable him to look after a number of other interests, of a minor nature, in addition to the service which he rendered as private secretary for Mr. Kemmerer; and for all these services he was suitably cómpensated. But bjr reason of the fact that under his general oversight and management, the business of the company became in time successful, and eventually showed a profit; and because that profit resulted in an individual benefit to Mr. Kemmerer, as a large stockholder in the company, the plaintiff claims that under the agreement this profit was to be divided with him by Mr. Kemmerer. In other words, his claim is that in addition to the services which he rendered to the steel companjq and for which he was paid by it, as they were rendered, he is entitled to share with Mr. Kemmerer the profit which accrued to Mr. Kemmerer by reason of the fact that he was a stockholder in the steel company. In discharging his duty to the company, the plaintiff naturally benefited its stockholders, of whom Mr. Kemmerer was chief.

It must be remembered that the question involved is not the value of the services. If that were the issue, it might fairly be ascertained by evidence, and fixed by the jury. But there is nothing in the case from which we can infer that the amount to be paid to the plaintiff would be based upon a quantum meruit. The question is- — admitting the truth of the plaintiff’s statement that Mr. Kemmerer agreed to divide with him his profits — how, or upon what basis, was that division to be made? Admittedly, this basis was never agreed upon or fixed by the parties. The plaintiff testifies that they never arrived at any basis which could be put on paper, and that it was always uncertain and' undetermined. He gives this as an excuse for not making any definite claim as to this particular, in the bills for services, which he was periodically rendering, and which were promptly paid. It is apparent that' the forms of corporate management were largely ignored in the conduct of the business, and that Mr. Kemmerer was, for all practical purposes, regarded as the only stockholder necessary to consult. The by-laws of the steel company were ignored, and neither meetings of directors or stockholders were formally held. As private secretary, Mr. Butler looked after the personal and allied interests of Mr. Kemmerer, and those of some of the members of his family. His salary as private secretary was fixed at $1,500 in 1890, and-to this was added opportunity for rendering other service yielding compensation, and gifts were also made from year to year, showing esteem and appreciation, until, in the year 1903, he received from these sources a total sum of $10,740, and during the period from 1890 to 1905, he received in salaries and gifts an aggregate of more than $62,000. It is suggested in the argument of counsel for appellant that these payments of largely increased compensation and the gifts which were made, may fairly be regarded as the fulfillment of any promise of liberal treatment made to the plaintiff by the defendant.

But however that may be, our concern is as to the incompleteness of the alleged contract. To form the basis of a legal obligation, an offer must be so complete that upon acceptance an agreement is formed which contains all the terms necessary to determine whether the contract has been performed or not: Page on Contracts, sec. 27. Price is as essential as any other of the terms of a contract, and without this agreed upon no contract exists: State v. Associated Press, 159 Mo. 410. An indefinite or uncertain contract cannot be enforced: Purves’s Estate, 196 Pa. 438; Graham v. Graham’s Exrs., 34 Pa. 475. A promise made by a decedent in his lifetime, in consideration of services to be rendered, to provide at his death for the person rendering such services, and to give her a portion of his estate, is too indefinite and uncertain to be enforced: Wall’s Appeal, 111 Pa. 460. An agreement by a landlord to reduce the rent, without naming the amount of reduction, is too uncertain to be enforced: Smith v. Ankrim, 13 S. & R. 39. A contract to take press reports for a term of years at not more than $300 per week, without other provision, is too indefinite to allow recovery for more than nominal damages for its breach: United Press v. Press Co., 164 N. Y. 406.

A case very much like the present one in its facts is that of Mackintosh v. Kimball, 101 App. Div. (N. Y.) 494, where the plaintiff, who was in the employ of a firm of architects on a weekly salary gave notice to the firm that he intended to leave unless his salary was raised. He was told by one of the firm that the increase would be granted and they would make it worth while for him to stay; that if the plaintiff stayed on until the completion of certain buildings which defendants were engaged in constructing, they would give him an interest in the profits. Plantiff having asked what would be the amount of the increase in his salary, was told that he could rest assured that the amount would be large because of the enormous cost of the buildings. Plaintiff then asked how this was to be arranged, and the member of the firm said: “You can depend upon me, I will see that you get a satisfactory amount.” Plaintiff continued in the employ of defendants until after the completion of the buildings referred to, and until the dissolution of the partnership three years after the contract was alleged to have been made, but did not receive any increase in salary or any interest in the profits of defendant’s business. Held, that the arrangement with .the plaintiff was too indefinite to form the basis of any obligation on the part of the defendants. Ingraham, J., said (p. 497): “There was here nothing from which a promise could be inferred that what the plaintiff would receive would be based upon a quantum meruit. The defendants proposed in the future to make some agreement which would be satisfactory to the plaintiff, but no basis upon which such increased compensation was to be estimated was suggested, except a general statement that Kimball’s idea was that the plaintiff was to be allowed some interest in the profits of the defendant’s business. The whole arrangement as testified to was so indefinite that it could not be the basis of a recovery. In United Press v. N. Y. Press Co., 164 N. Y. 406, .Judge Gray delivering the opinion of the court, says: It is elementary in the law that, for the validity of a contract, the promise or the agreement of the parties to it must be certain and explicit, and that their full intention may be ascertained to a reasonable degree of certainty. Their agreement must be neither vague nor indefinite.’ ”

So also in Bumpus v. Bumpus, 53 Mich. 346, the suit was by-a son against his parents to compel performance of an alleged contract to convey their farm to him in consideration of his remaining at home, managing the farm, furnishing the money for the education and support of a younger brother, and assisting him in getting a start in business. The plaintiff claimed to have executed his part of the agreement. Chief Justice Cooley, in considering the contract, said (p. 349): “Whether parties making such a contract -would contemplate a cost of $1,000 or $20,000, no one but themselves could say; for the one sum might in some cases be made to answer or the other be required. Courts cannot enforce such contracts; they must rest for their performance upon the honor and good faith of the parties making them.”

In the present case, if the promise was made as alleged, that in case defendant made any profit out of the business of the steel company, he would divide it upon a liberal basis with the plaintiff, who can determine from that statement what share in the profit the plaintiff was to have? Was it five per cent., ten per cent., or fifty per cent. ? Can it be said that the minds of the parties ever met in the .agreement as to this point ? -Certainly not.

After a careful consideration of the evidence, we can reach no other conclusion than that the trial judge should have instructed the jury, as requested by counsel for defendant, that the terms of the alleged contract were never made complete, and were never fixed, and for that reason no recovery can be had in this case. It is clear from the testimony of the plaintiff that he repeatedly urged the defendant to agree upon the terms, but that he as often refused, and postponed the matter from time to time. The jury were not at liberty to fix or determine a basis for the division of the profit, when the parties themselves had failed to reach any agreement, as to that very material matter. Any such attempt by the jury would be nothipg more than a guess or conjecture. There was no standard by which they could measure the degree of liberality with which the defendant should reward the plaintiff. As we have said more than once, it was not the reasonable value of ser vices rendered which was in dispute. The plaintiff received that, in the salaries and other compensation given him. It was the basis for the payment of the bonus, or division of the profit, which was left vague, uncertain and undetermined.

We sustain the first, second, eleventh, thirteenth, fourteenth, nineteenth and twentieth assignments of error. As we dispose of the case upon the ground that the agreement was incomplete, it becomes unnecessary to consider other points raised by the appeal.

The judgment is reversed, and is here entered for the defendant.


author: Mr. Justice Elkin,

text:
    Snively, Appellant, v. Washington Township.

      Road law — Eminent domain — Passageway under public road — Adverse possession — Damnum absque injuria.

    All rights of the individual in property are subordinated to the sovereign power of the state in the exercise of its right of eminent domain to appropriate such property for its public highways.
    Neither the commonwealth nor a township is liable for damages occasioned by the appropriation of private property for the construction of public highways, nor for injuries resulting therefrom in the absence of legislation providing for compensation.
    Where a landowner had a passageway for cattle which also answered as a water course, under a private way, and the township appropriated the road as a public road, and maintained a stone culvert of such a size as to answer the purpose not only of a water course, but also as a passageway for cattle, the township had the right fifty years thereafter to close up the culvert and substitute therefor a pipe for the passage of water without any liability to the landowner for the loss of the passageway for cattle.
    Supervisors have the whole- care and entire supervision of the public highway, and no person, not even an abutting landowner, can make any permanent private use thereof without their consent and approval, and even then subject to the right of the township to discontinue the private use when it is deemed expedient or necessary in order to promote the public use of the highway.
    Argued March 11,1907.
    Appeal, No. 311, Jan. T., 1906, by-plaintiff, from order of O. P. Franklin Co., Sept. T., 1905, No. 156, refusing to take off nonsuit in case of I. N. Snively v. Washington Township.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for the destruction of a passageway for cattle under a public road. Before Gillan, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      O. O. Bowers, with him J. B. Buthraujf and W. O. NicJdas, for appellant.
    One who owns the soil over which a highway passes has a right to enjoy his property in every way that may promote his interest or convenience, so long as he does not injure the public easement: Woodring v. Forks Twp., 28 Pa. 355; Phœnixville v. Phœnix Iron Co., 45 Pa. 135.
    While the supervisors may be, and probably are, personally responsible for the injury done to the plaintiff by closing up the passageway, the township of Washington is also liable therefor: Rapho Twp. v. Moore, 68 Pa. 404; Commrs. of Kensington v. Wood, 10 Pa. 93; Gilmore v. Connellsville Borough, 15 W. N. C. 342; Brink v. Dunmore Borough, 174 Pa. 395; Betham v. Philadelphia, 196 Pa. 302.

      Gliarles Walter and D. Watson Rowe, with them Arthur W. Gillan, for appellee.
    The owner of plaintiff’s farm, at the time the road was laid out, is presumed to have secured any damages to which he may have been entitled for the loss of the culvert, or cattleway, under the special proceeding provided by the statute: Com. v. McNaugher, 131 Pa. 55; Stevenson’s App., 17 W. N. C. 429; Wagner v. Salzburg Twp., 132 Pa. 636.
    The township supervisors had a right to fill up plaintiff’s culvert, or cattleway, if, in their judgment, the road could thereby be improved: Warfel v. Cochran, 34 Pa. 381; Mayor of Phila. v. Randolph, 4 W. & S. 514; Green v. Reading Borough, 9 Watts, 382; Carr v. Northern Liberties, 35 Pa. 324; Fair v. Philadelphia, 88 Pa. 309; Wood on Nuisance, 3d ed. 302; Yealy v. Fink, 43 Pa. 212; Monongahela Navigation Co. v. Coons, 6 W. & S. 101; Henry v. Bridge Co., 8 W. &. S. 85; O’Connor v. Pittsburg, 18 Pa. 187; Shoe v. Nether Providence Township, 3 Pa. Superior Ct. 137; Wagner v. Salzburg Township, 132 Pa. 636.
    May 20, 1907:
   Opinion by

Mr. Justice Elkin,

A public road was laid out under authority of law in 1854 by the supervisors of the defendant township, through and over a farm located therein, which at that time belonged to the predecessor in title of appellant here. It was laid out on the site of an old private road on the farm in question. The owner of the land constructed a passageway of sufficient height, width and depth to serve in a triple capacity as water course, passageway for cattle, and as a necessary part of the private road. When the supervisors laid out the public road they covered the old passageway with plank and thus the culvert served the same general purposes as the passageway in the old private road. The owner of the farm made use of the culvert as a passage way for his cattle, with the knowledge and consent of the township authorities, from 1854 down to 1904, when the supervisors met and passed a resolution which in substance provided that the cattleway or bridge be abandoned, and that a reasonable water course should be substituted therefor. This action was taken on the ground that it was too expensive to maintain the old stone culvert as a water course. Acting on the authority of this resolution the supervisors filled in the culvert, graded the public road, and made a water course by means of laying a pipe, which answered all that was required for drainage purposes. The appellant now insists that he had a passageway for his cattle under the public highway, recognized by the township when the original road was laid out, and which had been continuously used by himself and his predecessors in title for a period of fifty years, and that by depriving him of this right he was injured in such a manner as to make the township liable in damages. Dean v. New Milford Township, 5 W. & S. 545; Kapho Twp. v. Moore, 68 Pa. 404; Kensington v. Wood, 10 Pa. 93; Brink v. Dunmore Borough, 174 Pa. 395, and Betham v. Philadelphia, 196 Pa. 302, are relied on to sustain a right of action in this case. These cases recognize the principle that where an individual has sustained an injury by the misfeasance or nonfeasance of an officer who acts, or omits to acts, contrary to his duty, the law affords redress in a proper form of action to the injured party, and that supervisors will be considered agents of a township in the performance of the duties imposed upon them by law, and if in the performance of those duties the property of an individual is injured without authority of law, the township may be held liable in damages for the wrongful act. As a general proposition this may be considered sound law. It does not follow, however, that because in a proper case an action of trespass might lie that it can be maintained under the facts of the case at bar. It will be observed that the test of the rule in such an action is that the trespass complained of must have been committed by the officers of the municipality in the performanee of duties within the scope of their authority, and it must also appear that the act done was without warrant of law. In the present case, it is conceded that the supervisors acted within the scope of their authority in making repairs to the public highway, including the culvert, and it only remains to be determined whether they, in tearing down the old stone culvert, thus destroying the cattle way, and substituting a new and different water course, did so without warrant of law. Cleariy, if the supervisors had a legal right to do what was done in the present case, and they did it in pursuance of lawful authority, the township cannot be held liable in damages for an injury that may have incidentally resulted to the abutting property owner. This brings us to a consideration of the rights and duties of the parties to this controversy. Under the Act of June 13, 1836, P. L. 551, it was the duty of the supervisors to repair and maintain the public road which included the culvert in question as a part thereof. They recognized the duties imposed upon them and did repair and maintain the road and the culvert during all the years since the highway was opened for the use of the traveling public. When the public road was laid out the supervisors planked the culvert and used the same primarily and essentially as a part of the highway, and incidentally as a convenience to the owner of the farm, who neither aided in its maintenance nor repair, although permitted to enjoy the use of it for a long period of years. In repairing and maintaining the culvert the supervisors not only acted within their lawful authority, but performed a duty imposed upon them by law. It was within their discretion when the public road was first opened to have so constructed the culvert, or water course, as to have closed up or destroyed the cattleway. In other words, they could have done in 1854 exactly what they decided to do, and did, in 1904, and the owner of the land could not have maintained an action for trespass for any injuries resulting therefrom, because under the provisions of the act of 1836 a petition should have been presented to the proper court asking for viewers to assess damages, and this being the statutory remedy it must be pursued : Wagner v. Salzburg Township, 132 Pa. 636.

The learned counsel for appellant very earnestly and ably argue that inasmuch as the supervisors in 1854 recognized the right of the landowner to have a passageway for his cattle by the construction of the culvert in such a manner as to permit its use for this purpose, as he had enjoyed a similar use in the passageway under the private road he had such a right as could not be taken away from him without subjecting the township to an action for damages by reason of -the injury committed. This contention overlooks the settled principle of law that all rights of the individual in property are subordinated to the sovereign power of the state in the exercise of its right of eminent domain, to appropriate such property for its public highways. The rights of the public in all that portion of the land within the lines of the highway are superior to any right which the individual owner of the soil thus appropriated may undertake to assert in the use thereof. The right of a passageway for cattle can scarcely be deemed as great as the right of ownership in the soil, and, it cannot be denied, that when the public road was first opened in 1854 the supervisors could have graded and occupied all of the soil at the point where the culvert crosses, including the culvert itself, only being required to provide a reasonable water course where the conditions made it necessary. The right to appropriate the soil of the owner included the right to take the passageway. It is of no consequence that the supervisors in 1854 permitted the culvert to be of such dimensions as to be used as a cattleway for the convenience of the landowner. The culvert belonged to the township. The landowner had the privilege of using it as a cattle way, but his right was inferior to that of the public and must give way when the superior right is asserted.

The appellant contends that he had a right to maintain the passageway for his cattle, because it did not interfere with the public easement. This contention is based on the principle that one who owns the soil over which a highway passes has a right to enjoy his property in every way that may promote his interests or convenience, so long as he does not interfere with the public use. This is a familiar and settled principle of law. However, it must be understood in a qualified sense. It does not mean that a landowner can go upon the public highway and build any kind of a structure that may please his fancy or promote his convenience, without the consent and approval of the supervisors. Indeed, it may be stated as a general rule, that the supervisors have the whole care and entire supervision of the public highways, and that no person, not even an abutting landowner, can make any permanent private use thereof without their consent and approval, and even then subject to the right of the township to discontinue the private use when it is deemed expedient or necessary in order to promote the public use of the highway. In the present case the appellant does not assert a right to maintain a pas- . sage way for his cattle at his own expense, but insists that the township shall maintain it for him. The culvert is wholly within the lines of the highway. It was within the discretion of the supervisors to build it of stone, timber, or iron, and of a height, width and depth adapted to the public use without regard to the convenience of the landowner. If this be true, and there can be no doubt about it, it is equally within their discretion to make a new construction of different dimensions and materials whenever the best interests of the public demand it and ijt is deemed expedient to do so. The damage that may have incidentally resulted to the abutting landowner by reason of tearing down the old culvert and substituting a new water course is damnum absque injuria. It was early decided in this state, and the doctrine has been frequently reasserted, that neither the commonwealth nor the township are liable for damages occasioned by the appropriation of private property for the construction of public highways, nor for injuries incidentally resulting therefrom, in the absence of legislation providing for compensation: Feree v. Meily, 3 Yeates, 153; Greene v. Borough of Reading, 9 Watts, 382; Yealy v. Fink, 43 Pa. 212; Wagner v. Salzburg Township, 132 Pa. 636.

On motion for a re-argument of this case, it is suggested that when the public road was laid out in 1854, the then owner of the abutting land had constructed a cattle way, or culvert, with stone walls for sides, and that the township only planked the walls already there so that it could not be accurately stated that the culvert was constructed, maintained and repaired by the supervisors. The testimony relating to this matter is not very clear, but even admitting that the original stone walls were built by the private land owner, in our opinion, this fact is not important in the determination of the question involved here. The old private road, including the cattle way, was appropriated for public use in 1854. The cattleway was wholly within the lines of the highway of which it was a necessary part. It was therefore within the discretion of the proper township officers to change or alter the culvert to suit the convenience of the township when deemed advantageous or necessary so to do. The township had the superior right in the culvert after its appropriation for public use and is not liable in damages because it chose-to exercise its unquestioned right to change the culvert by providing a more reasonable water course, even if by so doing an injury incidentally resulted to the abutting land owner by depriving him of the use of a passageway for his cattle which had been permitted for many years.

J udgment affirmed.