text:
    Fidelity and Deposit Co. of Maryland v. Phillips, Appellant.

      Principal and surety — Several bonds — Contribution.
    1. Tbe fact that there are two or more bonds instead of one, but all conditioned to be answerable for one general purpose, does not affect the primary liability of the sureties on each bond. While the bonds remain in force the cestuis que trustent may elect to proceed against the sureties on either bond, and if a surety on either bond is compelled to pay the entire amount of the default, he may proceed against his co-sureties on all the bonds remaining in force, for contribution.
    2. Where a bond is entered by a trustee in the orphans’ court and thereafter a second bond is entered as additional security, and the sureties on the old bond do not ask for their discharge, they will continue liable on their bond; and if the sureties on the second bond are compelled to pay a loss, the sureties on the first bond will be liable to contribution.
    3. Where one of two sureties on the first of two successive bonds of a trustee, consents to an improper investment, and a loss results, such consenting surety is liable although his non-consenting surety may be discharged; and if the sureties on the second bond have been compelled to pay the loss, the consenting surety on the first bond will be liable to contributions to the full measure of his liability on his own bond.
    4. Where sureties are bound by different sums in different instruments, they are liable in proportion to the penal sums in the respective bonds.
    Argued Feb. 8, 1912.
    Appeal No. 203, Jan. T., 1911, by defendant from decree of C. P. Chester Co., No. 512, in equity, in case of Fidelity & Deposit Company of Maryland v. Lewis Phillips and Sarah C. Massey and Joseph W. Hawley, Executors of Isaac Massey, deceased.
    Before Fell, C. J., Mesteezat, Pottee, Elkin and Moschziskee, JJ.
    Affirmed.
    Bill in equity for contribution.

      Hemphill, P. J., found the facts to be as follows:
    This is a bill to compel pro rata contribution by the defendants, who, the plaintiff alleges, were co-sureties with it for a defaulting trustee and whose default has been paid in full by it alone, under the following facts and circumstances.
    On August 12, 1889, John A. Rupert was appointed by the orphans’ court of this county, trustee of Helen H. Holmes, in place of Samuel Dutton, deceased, who had. been the sole surviving trustee of the said Helen H. Holmes under the will of her father, Daniel B. Hinman, deceased; and received from the legal representatives of the said Dutton the trust fund of $12,017.12, first having given bond for the faithful performance of his duties, as trustee in the sum of $24,100 with Isaac Massey and Lewis Phillips as sureties, which bond was joint and not several and was approved by said court. The investments received by Mr. Rupert bore the rate of interest then current here, and for that reason were unsatisfactory to the cestuis que trustent, Mrs. Holmes and her daughter, Juliet C. Johnson (to whom the principal passed upon the death of her mother), who were desirous for an increase of income. Soon after Mr. Rupert’s appointment, he was visited by Mr. Holmes, the husband and father of the cestuis que trustent, with the view of having him invest the trust funds in securities bearing a higher rate of interest.
    In company with Dr. Isaac Massey, who was a son-in-law of the late Daniel B. Hinman, and brother-in-law of Mr. Holmes, both having married daughters of said Hinman, Mr. Rupert took Mr. Holmes to the office of his counsel, Mr. Hause, where the propriety and desirability of the change was discussed.
    Mr. Hause said he would not advise his client to make such investments, unless authorized by the cestuis que trustent so to do, in writing and agreeing to relieve him and Ms sureties from all losses by reason of such change, save only “for losses happening by gross negligence on the part of said trustee.” Such an agreement was subsequently prepared by Mr. Hause and executed by the cestuis que trustent, in the latter part of September, 1889, and returned to Mr. Rupert, who thereupon changed the investments to those bearing a higher rate of interest, mainly Kansas mortgages.
    At this meeting Mr. Holmes expressed himself as anxious to have the funds invested in a Massachusetts corporation, called the Weimer Company or the Weimer Investment Company, in which he was interested. But Dr. Massey thought such an investment unwise and suggested that the funds could be invested in western securities, that in his judgment were entirely safe.
    Dr. Massey and Mr. Rupert were intimate friends; he was instrumental in securing him as trustee; made investments, in western securities for himself and for his father through him; visited his office “frequently two or three times a week;” knew of the agreement and so upon its receipt from the cestuis que trustent Mr. Rupert called upon him at his home and told him he “could not consent to invest the fund in the Weimer Investment Company bonds,” and why — and thathe “proposed to invest moneys in Kansas mortgages, negotiated by the Kansas Investment Company, under the management then óf C. N. Beale, of Topeka, Kansas.” To this the Dr. neither dissented or approved — he made no comment at all.
    On May 24, 1899, Mr. Rupert filed his first account, ' which not being excepted to was duly confirmed.
    Dr. Isaac Massey died January 31, 1899, and in the latter part of that year Mr. Rupert was requested by counsel to give an additional bond or security, which he complied with by filing on January 29, 1900, a bond of the plaintiff company in the sum of $15,000.
    On November 6, 1903, a second account was filed by the trustee, to which exceptions were filed resulting in a surcharge and a finding, that there was due from the trustee to the cestuis que trustent the sum of $12,017.13. ■ Mr. Rupert having become insolvent, the orphans’ court on February 26, 1906, upon petition, dismissed him and appointed Benjamin W. Haines trustees in his place.
    The new trustee then brought suit upon the bond of the plaintiff company, which resulted on February 17, 1908, in a verdict for the plaintiff for $14,279.89, upon which judgment was duly entered and upon appeal was affirmed by the Supreme Court. (See Com. v. Fidelity & Deposit Co., 224 Pa. 95.)
    On April 12,1909, the defendant company (the plaintiff here) paid the judgment with interest and costs, amounting in all to $15,325.00 and on May 13, 1909, filed this bill for contribution.
    There is no evidence that the defendant, Lewis Phillips, who has died since the filing of this bill, ever saw or knew of the existence of the agreement of September, 1889.
    The court decreed: “That Sarah C. Massey and Joseph W. Hawley, executors of Isaac Massey, deceased, contribute, reimburse and pay over unto the plaintiff, Fidelity and Deposit Company of Maryland, 24100-39100 of $14,279.89, being the sum of $8,801.67, with interest thereon to be computed from February 18, 1908, amounting (on December 14, 1910, the date of the decree) to the sum of $10,291.56, and that they pay the costs of this proceeding.”

      Error assigned was the decree of the court.

      S. D. Ramsey and E. H. Hall, for appellants.
    The appellants were discharged by the agreement between the cestuis que trustent and the trustee: Bensinger v. Wren, 100 Pa. 500; Nesbit v. Turner, 155 Pa. 429; Bauschard v. Fidelity & Casualty Co., 21 Pa. Superior Ct. 370; North American Land Co.’s Estate, 60 Pa. 247; Hibbs v. Rue, 4 Pa. 348; Brez v. Warner, 9 W. N. C. 45; Shackamaxon Bank v. Yard, 150 Pa. 351; Rutter v. Hall, 31 Ill., App. 647.

      The surety is a favorite in law and all intentments must he resolved in his favor: Young v. American Bonding Co., 228 Pa. 373; North American Land Co.’s Estate, 60 Pa. 247; Bensinger v. Wren, 100 Pa. 500.
    In an action for contribution between sureties, any defense can be made that would have availed against the creditor: Baily’s Estate, 156 Pa. 634; Lowndes v. Pinckney, 1 Richardson Eq. (S. C.) 155.
    If there are several sureties liable for the same debt, and the creditor releases one of them from liability and does not thereby materially alter the contract, he releases the remaining surety to the extent that such released surety would otherwise have been liable to contribute to his co-surety: Mortland v. Himes, 8 Pa. 265; Schock v. Miller, 10 Pa. 401; Klingensmith v. Klingensmith, 31 Pa. 460.

      Wm. A. Glasgow, Jr., with him John H. Hall and Cornwell & Cornwell, for appellee.
    The consenting surety, Dr. Isaac Massey, was not discharged from liability, per se, by the fact that his co-surety, Mr. Lewis Phillips, -was discharged: Swanzey v. Parker, 50 Pa. 441; Schock v. Miller, 10 Pa. 401; Cox v. Detwiler, 1 W. N. C. 94; Holt v. Bodey, 18 Pa. 207; Talmage v. Burlingame, 9 Pa. 21; Weist v. Jacoby, 62 Pa. 110.
    The right of contribution exists between the two bonds filed in the Orphans’ Court: Com. v. Cox, 36 Pa. 442; Com. v. Fidelity & Dep. Co., 224 Pa. 95; Com. v. Transue, 2 North. County 313; Com. v. Risdom, 8 Phila. 23; Newcomer’s App., 43 Pa. 43; Com. v. Rogers, 53 Pa. 470; White v. Com., 39 Pa. 167; Bownman v. Kistler, 33 Pa. 106; Busch’s Est., 12 Phila. 53.
    The loss resulting from the surcharge against the trustee, John A. Rupert, should be apportioned between the two bonds filed by him according to the amounts of the respective penalties named in such bonds: Deering v. Winchelsea, 2 Bos. & Pul. 270; Craythorne v. Swinburne, 14 Ves. Jr. 160; Loring v. Bacon, 57 Mass. 465; Bell v. Jasper, 37 N. C. 597; Jones v. Hays, 38 N. C. 502; Jones v. Blanton, 41 N. C. 115; Moore v. Boudinot, 64 N. C. 190; Moore v. Hanscom, 103 S. W. Repr. (Tex.) 665.
    The full share of the surcharge apportionable to the first bond filed by Dr. Massey and Mr. Phillips, should be borne by the surety remaining liable on said bond: Wolf v. Pink, 1 Pa. 435; Burson v. Kincaid, 3 P. & W. 57; Boughton v. Bank of Orleans, 2 Barb. Ch. (N. Y.) 458.
    March 18, 1912:
   Opinion by

Mr. Justice Elkin,

In Com. v. Fidelity & Deposit Co., 224 Pa. 95, the judgment entered by the court below against the bonding company, appellant there and appellee here, was affirmed. The result of that judgment was to charge the bonding company with the entire default of the trustee, amounting at that time to $14,279.89. The appellee bonding company then brought this suit for contribution against the sureties on a former bond given by the same trustee to insure the faithful discharge of his duties and to secure a proper accounting of the trust funds. Unless the sureties on the former bond were discharged their liability to answer for the default of the trustee to those interested in the trust estate still continues, and it follows as a legal consequence, if there was a separate bond taken as an additional security, and the surety on the additional bond, paid the loss resulting from the default, the surety thus required to make good the default, may proceed against the sureties not discharged for contribution. The fact that there are two or more bonds instead of one, but all conditioned to be answerable for one general purpose, does not affect the primary liability of the sureties on each bond. While the bonds remain in force the cestuis que trustent may elect to proceed against the sureties on either bond, and if a surety on either bond is compelled to pay the entire amount of the default, he may proceed against his co-sureties on the same bond, or the sureties on all the bonds remaining in force, for contribution. This rule of law is of such universal application as to make it unnecessary to cite authorities in support of it. The only question that could arise on this branch of the present ease is whether the first bond still remained in force after the taking of the new bond. The learned court below held that both bonds remained in force, and this court is of the same opinion. There were two sureties on the original bond which was executed in 1889. Ten years later one of the sureties died, whereupon the cestuis que trustent through their counsel requested the trustee to give additional security. Neither the surviving surety nor the representatives of the deceased surety did anything by way of asking to be relieved from liability on the original bond, nor did they ask for additional security. The original bond as filed and approved by the court remains unchanged and is of record in the Orphans’ Court of Chester county. No petition was presented, nor was any request made by the sureties, nor by anyone else, when the new bond was taken, asking for a discharge of the sureties on the original bond. Indeed, the record and the facts show what the learned court below assumed as the basis of its findings, that the new bond was demanded and given as an additional security and not as a substitution for the original bond. There was no express discharge by order of court; and, certainly, under the facts and the rule of our cases such a discharge did not result by operation of law. We conclude, therefore, that both bonds continued in force and the liability of the sureties on the first bond was not discharged by taking the new bond.

It is further contended that the sureties on the first bond were discharged because the trustee and the cestuis que trustent entered into an agreement authorizing the investment of the trust fund in western mortgages without their knowledge or consent. The learned court below found as a fact, that one of the sureties advised this investment to be made, and must therefore be held to have given his consent, but as to the other surety, the evidence did not show, that he had any knowledge of such an investment being made, or that he had consented to such a disposition of the trust fund. The consenting surety was held bound according to his original undertaking, while the non-consenting surety was said to be discharged from all liability. There is a suggestion that the court may have erred in holding the one surety to be discharged, but no exception was taken, and as the point is not assigned for error, the question cannot be considered here.

It is strongly urged by counsel for appellants that the learned court below was not warranted in finding that Dr. Massey had consented to the investment of the trust fund in the securities from which the loss resulted. Any other finding would have disregarded the established facts and the plain inferences to be drawn therefrom. No other conclusion could have been reached without doing violence to the facts. It is further suggested that the discharge of the non-consenting surety had the legal effect of discharging the consenting co-surety. This position is without merit. As far back as Wolf v. Fink, 1 Pa. 435, it was decided, that where a second note was given in satisfaction of a first note, all parties to the first note were discharged, and the remedy is on the second; but if time only is given on the first note, and one of the joint sureties thereon assented, and the other surety dis sented, in a suit on the first note, an award in favor of the dissenting surety, unappealed from, does not operate as a discharge of the consenting surety and the maker. It has been frequently held that a plaintiff in a joint action against several parties may enter a nolle prosequi as to a defendant pleading matters personal to himself, and still recover in the same action against the other defendants. To this class of cases belongs that of a surety who seeks and obtains a discharge in equity by the conduct of the creditor. In such a case a judgment in favor of one surety so discharged from liability, does not operate to discharge a co-surety who is not in position to avail himself of a like defense personal to himself. See Schock v. Miller, 10 Pa. 401; Holt v. Bodey, 18 Pa. 207; Swanzey v. Parker, 50 Pa. 441; Weist v. Jacoby, 62 Pa. 110.

In the case at bar the consenting surety on the first bond is bound to make contribution to the surety on the second bond in proportion to the extent of their respective undertakings and the extent of that liability is the only remaining question to be considered here. If suit had been brought on the first bond, instead of the second, each of the original sureties would have been liable for the entire default, but could have called upon his co-surety for his share of the loss. But if one surety consented, and the other dissented, there would be no liability on the dissenting surety and the whole burden would fall upon the consenting surety. The consenting surety cannot escape the full measure of his liability upon the ground that his co-surety did not join in giving his consent. If, therefore, a judgment had been obtained against Dr. Massey, the consenting surety on the original bond, for the full amount of the default, he could only have claimed contribution from the sureties remaining bound. The rule must necessarily work both ways, and inasmuch as judgment here was obtained for the full amount of the default against the surety on the second bond, that surety has the right to demand contribution in proportion to the liability imposed upon the sureties on the first bond according to their several undertakings. The liability of each surety in the several undertakings is measured by the penal sum in the respective bonds. This is the settled rule of the English cases, and it has been approved and followed by most American courts: Deering v. Winchelsea, 2 Bos. & Pul. 270; Craythorne v. Swinburne, 14 Ves. Jr. 160; Loring v. Bacon, 57 Mass. 465; Bell v. Jasper, 37 N. C. 597; Moore v. Hanscom, 103 S. W. Rep. 665. The rule seems to be that if the sureties signed tbe same instrument there would be equal contribution among them, but where the sureties are bound by different sums in different instruments, they are liable in the proportion, of the amounts of the obligations signed by them respectively. This court very recently considered the question in Malone v. Stewart, in an opinion not yet reported, in which it was held that the liability of the sureties to contribute was in proportion to the penal sums in the respective bonds. In fixing the liability of the consenting surety in the present case this rule was followed by the learned court below and we think properly so.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Curran v. Delano, Appellant.

      Mines and mining — Boundary pillars — Width of — Jurisdiction of equity to determine width — Act of June 2, 1891, Art. Ill, Sec. 10, P. L. 176, Act of March M, 1806, If Sm. L. S26.

    1. Under the Act of June 2, 1891, Art. in, Sec. 10, P. L. 176, entitled “An act to provide for the health and safety of persons employed in and about the anthracite coal mines of Pennsylvania, and for the protection and preservation of property connected therewith,” a court of equity has no jurisdiction to determine the width of a boundary pillar between two mines. Such width of pillar is to be determined under the act by the engineers of the adjoining property owners together with the inspector of the district in which the mine is situated, and the jurisdiction of this tribunal is exclusive. The fact that the owners of one of the mines removed the coal from its mine up to the boundary line, cannot deprive the statutory tribunal of the authority to determine the proper width of the pillar, and confer-such authority upon a court of equity.
    2. Where a decree has been entered on a bill in equity fixing the width of the boundary pillar between two mines, the appellate court on an appeal from such decree will not reverse the decree and dismiss the bill, but will direct the court below to retain the bill until the width of the boundary pillar or the absence of necessity for one shall have been determined by the inspector and engineers, and surveys are made and filed as required by the Act of 1891, or until the inspector and engineers shall have decided that no pillar is needed for the safety of the employees of either mine. When such action has been taken, the court below will then enter a decree dismissing the bill.
    3. Both at common law and under the Act of March 21, 1806," 4 Sm. L. 326, where a statute creates a right or liability, or imposes a duty, and prescribes a particular remedy for its enforcement, such remedy is exclusive and must be strictly pursued.
    Argued Feb. 12,1912.
    Appeal, No. 371, Jan. T., 1910,'*' by defendants, from decree of C. P. Schuylkill Co., March T., 1909, No. 3, on bill in equity in case of John. E. Curran, Mine Inspector in the Eighteenth Anthracite District of the State of Pennsylvania v. Warren Delano Jr. and Frederick A. Delano, Trustees under the last will and testament of Warren Delano, deceased, and under the last will and testament of James S. Cox, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Bill directed to be retained.
    Bill in equity for an injunction. Before Bechtel, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned, was decree awarding injunction.

      Guy E, Farquhar and O. E. Berger, with them Otto E. Farquhar, for appellants.
    This act of assembly is very broad and not only provides that where a remedy is provided or duty enjoined, but also when anything is directed to be done by any act or acts of assembly, the direction of the said acts shall be strictly pursued.
    This act of assembly has been very strictly construed.
    The remedy provided by the act need not be a legal remedy or proceedings at law in any court: Chestnut Hill Turnpike Company v. Martin, 12 Pa. 361; Collins v. Collins, 37 Pa. 387; Huntingdon, Cambria & Indiana Turnpike Co. v. Brown, 2 Penrose & Watts 463; Peter v. Schlosser, 81 Pa. 439; Moreland Twp. v. Gordner, 109 Pa. 116.
    It is respectfully submitted, that the court has no jurisdiction over the subject matter of the width of the boundary pillar and could not obtain jurisdiction by acquiescence or consent of the parties.

      James J. Moran, for appellee.
    March 18, 1912:
   Opinion by

Mr. Justice Mestrezat,

Warren Delano and James S. Cox were the owners of a tract of coal land in Schuylkill county. By a lease dated April 26, 1882, they leased the eastern portion of the tract to the Mill Creek Coal company; and by a lease dated March .8, 1888, they leased the western portion to certain persons who, on November 28, 1888, assigned the lease to the Dodson Coal Company. By an agreement dated January 16, 1889, the parties agreed upon and fixed a new boundary line between the properties of the two coal companies. In each of the leases it is provided that between the outer boundary lines of the demised premises, and of the adjacent property there shall be left a solid wall of coal of at least sixty feet in thickness, which shall not in any manner be broken through without the written consent of the lessors. Prior to November 1, 1893, the Mill Creek Coal Company had driven its gangways on the north side up to its lines, and had not left a solid wall of coal within its outer boundary lines of sixty feet in width as required by its lease. About the date named the Mill Creek Company’s breaker was burned and the workings filled with water and so remained until the colliery was reopened in 1906. The Dodson Coal Company extended its workings to within three hundred feet of the boundary line. In 1908, the trustees under the wills of Warren Delano and James S. Cox, then deceased, requested the Dodson Coal Company, their lessee, to mine and remove the coal up to and within one hundred and twenty feet of the boundary line so as to' leave a pillar of that width, as required by the leases, between the two mines.

The mine inspector notified the Dodson Coal Company not to mine within three hundred feet of the Mill Creek Coal Company’s workings, but the notice was disregarded and the company proceeded to drive the gangway of the Buck Mountain vein into the barrier as required by the landowners. The mine inspector thereupon filed this bill against the two coal companies and their officers. The amended bill avers inter alia: that section 10 of article III of the Act of June 2,1891, P. L. 176, states that “it shall be obligatory on the owners of adjoining coal properties to leave, or cause to be left, a pillar of coal in each seam or vein of coal worked by them, along the line of adjoining property, of such width, that taken in connection with the pillar to be left by the adjoining property owner, will be a sufficient barrier for the safety of the employes of either mine in case the other should be abandoned and allowed to fill with water;” that the barrier pillar now standing between the underground workings of the two collieries is three hundred feet in width and the defendants are extending the Buck Mountain gangway of the Dodson Coal Company’s colliery east into the pillar and by so doing will reduce the width thereof, and any reduction of such width will make it insufficient for the safety of the employes of either- mine in case the other should be abandoned and allowed to fill with water; and that the defendants had been notified by the mine inspector not to extend the gangway any further east and that by so doing the width of the barrier pillar would be decreased and the lives of all persons working in either of said mines would be endangered in case the other should be abandoned and allowed to fill with water. The bill prays that the defendants be restrained from extending the Buck Mountain gangway in the Dodson Coal Company’s colliery any further into the barrier pillar, “or doing any other matter or thing whatsoever that may reduce the width of said barrier pillar,” and for general relief. Each of the two coal companies and their officers filed answers. Subsequently, Warren Delano Jr., and Frederick A. Delano, trustees under the wills of Warren Delano, deceased, and James S. Cox, deceased, were permitted to intervene as defendants. They filed a demurrer and, that being overruled, filed an answer. The learned court entered a decree against all of the defendant’s restraining them from reducing the width of the barrier pillar by extending the Buck Mountain gangway in the Dodson Coal Company’s mine any further into the barrier pillar and from making any other opening in any of the lifts of the mine, and from doing any other matter or thing that would reduce the width of the barrier pillar to less than three hundred feet. From that decree the trustees of the two estates have taken this appeal, and have assigned as error, inter alia, the overruling of the demurrer.

The trustees allege as one of the grounds of demurrer that the bill does not set out facts which entitle the plaintiff to the relief prayed for. They contend that under the facts averred the court has no jurisdiction, that the prayer of the bill requires the court to determine the width of the barrier pillar in order to give the relief prayed for, and that the act of 1891 having prescribed the method of determining the necessity as well as the width of a barrier pillar, the remedy therein prescribed must be pursued, that it is not averred that the width of the boundary pillar had been determined as required by the act, and that, therefore, the bill would not lie. We think the learned court below erred in not sustaining this contention, and in overruling and dismissing the demurrer filed by the trustees.

It will be observed that the bill is based on article III, section 10, of the Act of June 2,1891, P. L. 176, 3 Purd. 2566; that it avers that the reduction of the width of the present barrier pillar would make it insufficient for the safety of the mine employes; and that the decree enjoins the defendants from reducing the width of the barrier pillar to less than three hundred feet. A large amount of testimony was taken by the learned court below for the purpose of determining what width of pillar between the two collieries was necessary to protect the employes. The proceeding, therefore, from its inception to and including the final decree was for the purpose of establishing the proper width of a barrier pillar which should be left to protect the employes in the Dodson Coal Company’s mine. The court was without jurisdiction to determine the question, which was exclusively cognizable by the tribunal created by the act of 1891.

Section 10 of article III of the Act of June 2, 1891, P. L. 176, after requiring the owners of adjoining coal properties to leave between their mines a barrier pillar of sufficient width, as averred in the bill, provides as follows: “Such width of pillar to be determined by the engineers of the adjoining property owners, together with the inspector of the district in which the mine is situated, and the surveys of the face of the workings along such pillar shall be made in duplicate and must practically agree. A copy of such duplicate surveys, certified to, must be filed with the owners of the adjoining properties and with the inspector of the district in which the mine or property is situated.” The statute, therefore, not only makes it obligatory upon the owners of the adjoining properties to leave a boundary pillar, but provides the tribunal by which the width of the pillar is to be determined. The jurisdiction of that tribunal is exclusive, and the court is without authority to determine the question. It is settled both at common law and under our act of March 21, 1806, 4 Sm. Laws 326, 1 Purd. 271, that where a statute creates a right or liability or imposes a duty, and prescribes a particular^ remedy for its enforcement, such remedy is exclusive and must be strictly pursued. It is, therefore, apparent that unless there was some controlling reason why the statutory remedy could not be pursued and the width of the boundary pillar could not be determined by the tribunal created by the statute, a court of equity had no jurisdiction to determine the width of the pillar. We do not understand that the learned court below controverts this position, but holds that the method provided in the statute for the determination of the size of the boundary pillar does not apply to the case at bar “for the reason that the Mill Creek Coal Company, which is one of the adjoining owners, has mined the coal and extended its gangways up to the line between the lands leased to the Dodson Coal Company and the lands leased to the Mill Creek Coal Company, so that all the coal remaining, out of which the pillar is to be composed, is entirely on the Morea side of the mine and belongs to the Dodson Coal Company under its lease.” We do not think this position is tenable. The purpose of the act was not only to require the owners of adjacent collieries to leave a boundary pillar, if necessary, but also to create a tribunal for the purpose of determining the necessity of the pillar and the width thereof. The averments of the bill disclose that the plaintiff’s right to require a boundary pillar to be left is based upon the act of 1891. It recites the pertinent provision of the act, and then avers that a smaller dimension than a certain width would render the barrier pillar insufficient for the protection of the employes of the mine. The manifest purpose, therefore, in filing the bill, as appears by its averments and the decree entered by the court below, was to have the chancellor determine the proper width of the barrier pillar, and to restrain the defendants from “doing any other matter or thing whatsoever that may reduce the width of said barrier pillar.” We are at a loss to see how the fact that the Mill Creek Company removed the coal from its mine immediately adjacent to the boundary line can deprive the statutory tribunal of the authority to determine the proper width of the pillar. If that tribunal should determine that no barrier pillar is necessary, it follows that the Mill Creek Company had 1 the right to remove all the coal on its side of the honnd- \ ary line. If, however, it should determine that a pillar ' of a certain width was necessary to protect the mine and the employes working therein, the fact that the adjacent property owner removed the coal in violation of its duty would not oust the jurisdiction of the tribunal created by the act of 1891. In such case, what the consequences to the owner of the adjacent colliery may be we are not concerned with in this case, and hence need not determine. That question can await a decision when a proper suit has been brought and the proper parties are before the court for its determination. The tribunal created by the statute, composed of two mining engineers and a mine inspector, is more competent to determine the proper width of the boundary pillar than a judge inexperienced in such matters and who must rely upon the | information he obtains from witnesses. The voluminous testimony in this case shows the diversity of opinion of the several witnesses, and also discloses the wisdom of the statute in providing a tribunal composed of three mine experts to determine the question. The purpose of the statute is, as disclosed by its title, “to provide for \ the health and safety of persons employed in and about I the anthracite coal mines of Pennsylvania and for the | protection and preservation of property connected there- } with.” Ample provision is made in other sections for " the purpose of carrying out other requirements of the statute, but none of them confers jurisdiction upon a chancellor to determine the width of a boundary pillar between adjacent collieries. The remedy provided in the 10th section of article III of the statute must, therefore, be pursued, and the act of the Mill Creek Company in removing the coal from its mine adjacent to the barrier cannot confer jurisdiction on a court of equity.

Following the practice established in Commonwealth v. Plymouth Coal Company, 232 Pa. 141, we will not now reverse the decree and dismiss the bill, but will direct the court below to retain the bill until the width of the boundary pillar, or the absence of necessity for one, shall be determined by the inspector and the engineers and surveys are made and filed as required by the act of 1891, or until the inspector and engineers shall decide that no pillar is needed for the safety of the employes of either mine. When such action has been taken, the court below is directed to enter a decree dismissing the bill at the costs of the appellee.


author: Mr. Justice Brown,

text:
    Oak Grove Water Company, Appellant, v. Thompson.

      Corporations — Water companies — Bond in condemnation proceedings — Act of April 29, 187b, P■ L. 78 — Practice, C. P. — Petition.

    1. The court of common pleas is justified in refusing to approve a bond offered by a water company in condemnation proceedings, where the only proof relied upon by the company as to the presentation of the bond to the owner and that the owner and the company could not agree upon the amount of damages claimed, is the affidavit of a person who is not shown by the record to have had any connection whatever with the company.
    2. Where a water company filed a bond in condemnation proceedings and the owner excepts to the bond on the ground that there was no averment or proof that the company was a Pennsylvania corporation, or that it had the power to appropriate land and waters in the jurisdiction of the court, and further that the company had no authority either by statute or by charter to appropriate the land and water described in the bond, and the company, although filing answers denying averments in the exceptions, does nothing further to substantiate the answers, the court of common pleas will be justified, after the expiration of a year, in entering a decree refusing to approve of the bond.
    3. Although the Act of April 29, 1874, P. L. 73, under which water companies are incorporated and given the right of eminent domain, does not require a formal petition to be presented to the court asking for the approval of a bond refused by a landowner when tendered to him by the company to secure to him damages for the taking of his property, the proper and better practice is to file such a petition at the time the approval of the bond is asked for.
    4. Such a petition should set forth (1) the corporate power of the water company to take the land under the right of eminent domain; (2) an accurate description of the land by metes and bounds, evidenced by an accompanying draft of the same; (3) the failure of the company and of the landowner to agree upon the amount of damages claimed; (4) the tender by the company to the landowner of a bond with at least two sufficient sureties, and (5) the refusal of the landowner to accept the bond, and that written notice was given to him of the time when the same would be presented for filing in court for approval.
    5. If the averments in the petition, or any of them, should be denied by the landowner, the findings of the court on a hearing on exceptions or answer to the petition, would become part of the record from which an appellate court could determine whether error was committed in approving or refusing to approve the bond.
    Argued Feb. 12, 1912.
    Appeals, Nos. 192 and 193, Jan. T., 1911, by plaintiff from orders of C. P. Schuylkill Co., Nov. T., 1909, Nos. 320 and 321, refusing to affirm bonds in case of Oak Grove Water Company v. Albert Thompson.
    Before Fell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to bonds. Before Brumm, J.
    The opinion of the Supreme Court states the case.

      Errors assigned, were the orders refusing to affirm the bonds.

      John F. Whalen, for appellant.

      B. W. Gumming, Jr., for appellee.
    March 18, 1912:
   Opinion by

Mr. Justice Brown,

These two appeals, to be regarded as writs of certiorari, bring up records in each of which the appellant contends error is disclosed in the refusal of the court below to approve its bond to secure to the appellee payment of damages for taking his lands for its alleged corporate purposes under its alleged right of eminent domain. The two records are exactly similar, and, as each appeal raises the same question, what is about to be said applies to both. Very much that does not appear on the records has crept into the paper books of both the appellant and appellee, but we can consider no statements in either, even if they be true, that are not supported by the records, to which we are strictly confined in disposing of the appeals. On October 25, 1909, the appellant presented in the court below its bond to the appellee in the sum of $2,500, conditioned for the payment to him of such amount of damages as he might be entitled to recover for the taking of the land described in the bond for the alleged corporate purposes of the appellant. At the same time there was presented what purported to be a notice from the appellant, by its president, directed to the appellee, that, as he had refused to accept the said bond, the same would be presented for approval to the court on October 25, 1909. There was also presented what purported to be proof of service of notice that the bond would be presented for approval. This was in the nature of an affidavit made by one K. C. Wilson, that he had endeavored, but unsuccessfully, to agree with the appellee (apparently for the amount of damages to be paid him, though this was not stated in the affidavit), and, having tendered him a bond, which was not accepted, notice was given to the appellee that it would be presented to the court for approval, as provided by law, on October 25,1909. On that day the court directed the bond to be left with the prothonotary, and the alleged notice of the intention to file it and the alleged proof of service of such notice were filed with it. An appearance for the appellee was entered de bene esse, and the court made the following order: “And now, to wit: October 25th, 1909, the foregoing bond having been presented in open court, the same is directed to be entered with the prothonotary and Monday, November 1, 1909, at 10 a. m. is fixed for hearing on the approval of the bond, and if any exceptions are made to said bond they shall be filed Thursday next.” On November 1,1909, the time of hearing the application to approve the bond was continued to November 15, 1909. On that day there was a further continuance to November 29, 1909. Subsequently there were seven continuances of the hearing of the application to approve the bond. At whose instance or for what reasons they were granted does not appear. On June 8, 1910, twenty-six exceptions to its approval were filed by the appellee. Most of these require no notice. The material ones were as follows: “1. There is no proof that the bond presented to court was tendered to Albert Thompson by Oak Grove Water Company.” “2. There is no proof that any bond was tendered to Albert Thompson by the Oak Grove Water Company.” “4. There is no proof that the Oak Grove Water Company and Albert Thompson could not agree upon the amount of damages claimed or could not agree for the compensation proper for the damage done.” “8. There is no averment or proof that the Oak Grove Water Company is a Pennsylvania corporation.” “9. There is no proof that the Oak Grove Water Company has the power to appropriate land and waters in the jurisdiction of this court.” “10. There is no authority conferred on the Oak Grove Water Company by statute or by charter to appropriate the land and water described in said bond.” Answers were filed by the appellant, denying the averments set forth in the foregoing exceptions, but, though a full year was allowed to sustain the answers, no attempt was ever made to substantiate them, and on June 12, 1911, the following order was made: “And now, to wit, June 12th, A. D. 1911, there being no proofs before us on any evidence offered by plaintiffs to sustain the facts set forth in their answer to the exceptions, and as our ruling on the exceptions shows that the plaintiffs failed to supply certain requisites necessary to vest jurisdiction in the court under their application, we decline at this time to approve the bond.”

The appellee was, strictly speaking, correct in the averments set forth in his first, second, fourth and fifth exceptions, for all the appellant relied upon as to the presentation of the bond to the appellee and that he and it could not agree upon the amount of damages claimed, was the affidavit of one K. C. Wilson. Who he was does not appear, and he may not have had any connection whatever with the company. His affidavit merely sets forth that he endeavored to agree with the appellee as to the amount of damages claimed, but was unable to do so, and that he tendered the bond, which was not accepted, and thereupon notice was given the appellee that it would be presented to the court below for approval. From all that appears from Wilson’s affidavit, he may have been merely an outsider. But, waiving this, the unanswered averments of the appellee in his eighth, ninth and tenth exceptions clearly stood in the way of the approval of the bond. They were that there was no averment or proof that the appellant was a Pennsylvania corporation; that there was no proof that it had the power to appropriate land and waters in the jurisdiction of the court; and there was a distinct denial of any authority conferred upon it by statute or by charter to appropriate the land and water described in the bond. Before a bond given to secure a landowner for his damages for land taken from him by a corporation, under its right of eminent domain, can be approved, it must affirmatively appear to the court that the company tendering it is vested with such right. It is only by virtue of such power that a corporation can call upon a court to exercise its jurisdiction to approve a bond. In the present case, though given a full year to do so, the appellant failed to submit anything to the court showing that it possessed the right of eminent domain, while, on the other hand, such right was specifically denied by the appellee. The record having been in this state at the time tbe court refused to approve tbe bond, nothing more need be said in sustaining its action.

Though the Act of April 29, 1874, P. L. 73, under which water companies are incorporated and given the right of eminent domain, does not require a formal petition to be presented to the court, asking for the approval of a bond refused by a land owner when tendered to him by the company to secure to him damages for the taking of his property, the proper and better practice is to file such a petition at the time the approval of the bond is asked for: 2 Lewis on Eminent Domain, (3rd Ed.) 969. Such a petition should set forth (1) the corporate power of water company to take the land under its right of eminent domain; (2) an accurate description of the land by metes and bounds, evidenced by an accompanying draft of the same; (3) the failure of the company and of the land owner to agree upon the amount of damages claimed; (4) the tender by the company to the landowner of a bond, with at least two sufficient sureties; (5) the refusal of the land owner to accept the bond, and that written notice was given to him of the time when the same would be presented for filing in court for approval. Such a petition, unanswered, would show not only the court’s jurisdiction in the premises, but its duty to approve the bond. If the averments in the petition, or any of them, should be denied by the land owner, the findings of the court on a hearing, on exceptions or answer to the petition, would become part of the record, from which an appellate court could determine whether error was committed in approving or refusing to approve the bond. If such a course had been pursued in the present case, there would be no difficulty in determining whether the court had improperly refused to approve the appellant’s bond. As the record stood at the time the approval of the bonds was refused, the court could not have approved them, and both appeals are dismissed with costs.


author: Per Curiam,

text:
    Edison Electric Illuminating Co. v. Citizens Electric Company, Appellant.

      Corporations — Electric •light companies — Conflicting rights— Maintenance of wires — Interference of wires.

    1. As between electrical companies exercising similar franchises upon the same streets priority carries superiority of right.
    2. The subsequent licensee is under the duty to so construct and maintain its wires and lines as not to interfere with the right of the prior occupant of the streets to properly maintain and operate its lines and to transact the business it is authorized by its franchise to transact.
    3. Equity will enjoin all interference of junior companies with senior companies which is not strictly unavoidable, and this without regard to the extra cost of the methods which might be necessary for the junior company to use to prevent such interference.
    4. The company having the prior right upon the street is entitled to as much space therein as is reasonably necessary for the safe and successful operation of its line, including any additional space that it may be reasonably anticipated will become necessary in the future for the growth and enlargement of its business.
    5. There is no right, without the consent of the other party, in one electric light company to attach in any way its wires to the poles of another electric light company, or to attach the wires of another electric light company to its own poles.
    Argued Feb. 12, 1912.
    Appeals, Nos. 212 and 213, Jan. T., 1911, by defendant from decree of C. P. Lycoming Co., June T., 1909, Nos. 4 and 5, on bills in equity in case of Edison Electric Illuminating Company of Williamsport and Lycoming Electric Company v. Citizens Electric Company.
    Before Fell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bills in equity for injunctions.
    Hart, P. J., filed the following opinion:
    The questions involved are not only of importance to the plaintiff and defendant, as affecting their relative rights, but as affecting the safety of persons and property liable to come in contact with electric currents used by these respective parties.
    That a system of high tension wires, carrying a voltage varying from five thousand to one hundred and ten volts, requires the highest degree of care and skill, both in construction and maintenance, to safeguard against injury to persons and property, is undisputed.
    To accomplish this is by no means an easy task when but a single system of wiring is maintained upon a street or highway, but when two or more separate systems are maintained upon the same street or highway the danger becomes multiplied by conditions which do not exist in the maintenance of a single system.
    In standard pole line construction poles are planted in the ground about six feet deep, varying in height from thirty-five to fifty-five feet above the surface of the ground, supplied with cross arms bolted to the pole at a distance of about eighteen inches apart, provided with wooden pins and glass insulators, placed from twelve to eighteen inches apart. The poles are placed about one hundred and twenty feet apart, and from pole to pole are strung copper wires stretched to a uniform tension and securely fastened to glass insulators. This is called a span. The number of cross arms depends upon the number of wires necessary for present or reasonably contemplated future service and use.
    It will be observed that a system thus constructed has its wires held firmly in place upon the cross arms, and when, from any cause, the pole moves from a perpendicular, line either way the wires all move together. For example, if the poles should from any reason be caused to lean from a perpendicular towards each other this would cause slack in the wires and this increased slack would be uniform and the wires would not thereby become closer together, and the same would be the result should the pole from any cause become deflected or caused to lean from a perpendicular to one side or the other. All the wires in the span would move together and maintain their relative fixed distance apart.
    It has been demonstrated by the uncontradicted evidence that in the best of pole line construction no pole will maintain its perpendicular or other position in which it is set. Climatic conditions, freezing and thawing of the earth in which the pole is planted, wind, rain, sleet and snow, heat and cold, all have their tendency to cause the pole to vary from its original position and thereby correspondingly change the position of all the wires in the span supported by such pole causing a greáter or less sag in the wires, or causing them to be moved farther to one side or the other.
    In this connection it has been demonstrated by mathematical calculation that in a span one hundred feet in length the deflection of a pole at the top a distance of three inches towards the other pole in the span will increase the sag eighteen inches; and that six inches of deflection will increase the sag thirty-four inches, over an original sag of twenty-four inches.
    This tendency in pole line construction, of poles to change their position from a perpendicular line, or from their original position, is one of the conditions that must be guarded against and provided for in the maintenance of two or more electric pole line constructions on the same street or highway.
    [It has been shown by the preponderance of evidence in this case that safe pole line construction requires a clearance between wires of two or more different or independent constructions of at least twenty-four inches, and that this clearance is observed in the maintenance of such constructions in all cases where due regard is had for the safety of life and property.]
    It has been fully established by the evidence that where a high tension electric wire comes in contact with another wire there is no insulation in use that will prevent these wires from sooner or later becoming charged with a deadly current and result in either carrying such high current to service wires supplying dwelling houses or other buildings and places using electricity and cause injury to persons and property therein, or in the burning of the wires in contact entirely off, causing them to drop into the street and thereby cause injury or death to the passer-by coming in contact therewith.’
    [It is further well established that high tension wires coming in contact with a wooden pole or cross arm when wet, or when saturated with moisture, that the moist or wet wood becomes a conductor of electricity and a means of causing fire at the place of contact, and sooner or later of the conveyance of the current to any wire coming in contact with such pole or cross arm.]
    It therefore becomes apparent that by reason of the impossibility of keeping poles in an exact given place, as we have indicated, any separate pole line construction maintained upon the same street, with another such construction, should be required to be so maintained as to avoid contact, or the danger of contact, by avoiding the interlacing of wires, or the close proximity of wires, or the construction of poles or cross arms in dangerous proximity to the wires of another or independent pole line construction.
    The plaintiff, the Edison Electric Illuminating Company, was incorporated in 1882, and since the year 1884, under permission granted by ordinance of the city of Williamsport, has occupied certain streets and alleys in said city with its poles, cross arms, wires and necessary appliances for the supplying of light, heat and power by means of electricity to persons and corporations desiring to use the samé within said city and vicinity, and has been down to the present and still is so supplying the same.
    The defendant, the Citizens Electric Company, was chartered under the laws of the commonwealth of Pennsylvania and by ordinances of March 3,1896, and March 3 8, 1907, was granted permission to occupy the streets, lanes and alleys of the city of Williamsport with poles and wires, and has erected poles, wires, cross arms and other appliances in certain of the streets and alleys of the city for the purpose of furnishing light and power by means of electricity to persons and corporations desiring the same and is yet so supplying the same.
    The plaintiff charges the defendant with having so constructed and maintained its poles and wires as to rest upon the wires, poles and other appliances of the plaintiff, and also so as to be in dangerous proximity to the wires of the plaintiff, and, in places, through and between the wires of the plaintiff, thereby endangering the property of plaintiff and the lives of plaintiff’s customers, employees and of all other persons who may come in contact with or use electric current from works of jdaintiff, thereby causing irreparable injury and damage to the plaintiff.
    This is denied by the defendant in its answer to the plaintiff’s bill of complaint.
    The evidence shows that plaintiff and defendant both occupy, in many places throughout the city of Williams-port, the same streets and alleys; the plaintiff company having erected its poles and wires on these streets and alleys several years prior to the defendant company entering upon such streets and alleys with its wires.
    [The evidence shows that at eleven different places the poles, wires or cross arms of the defendant company come in contact with the wires of plaintiff company and were in this situation at or immediately before the filing of plaintiff’s bill. That at fourteen different places the defendant’s wires or cross arms were then maintained within a distance varying from one inch to fourteen inches from the wires of the plaintiff company.
    From what we have said this condition is attended with danger to both persons and property.]
    The relative duty of the owners and operators of independent pole line constructions on the same streets and alleys have been definitely defined by the Supreme Court in Edison Electric Light & Power Company v. Merchants & Manufacturers Electric Light, Heat & Power Company, 200 Pa. 209, wherein Justice Mitchell says: “As between two corporations exercising similar franchises on the same streets, priority carries superiority of right. Equity will adjust the conflicting interests as far as possible and control both so that each company may exercise its own franchise as fully as is compatible with the necessary exercise of the other’s. But if interference and limitation of one or the other are unavoidable, the latter must give way.” * * * “Equity will enjoin not only wanton or negligent damage, but all interference which is not strictly unavoidable; and in regard to keeping defendant’s wires clear of those in bona fide use by the plaintiff and necessary for its business, the injunction must be absoluta without regard to extra cost of other methods.”
    We are fully convinced that the plaintiff having been first on the ground with its construction, antedating the defendant’s construction by several years, is entitled to a reasonably safe clearance for its construction, and that no interference, dangerous to the life or safety of individuals or property, can be insisted upon within the scope of legal authority.
    [We are further convinced that some approximately safe rule should prevail governing clearances in the pole line constructions of plaintiff and defendant. And in view of the weight and preponderance of the evidence bearing upon that subject, we are fully convinced that a clearance of not less than twenty-four inches should be maintained, and that such is absolutely necessary for the safety of the employees and property of the plaintiff, and for the safety of the lives and property of all others using electric currents or who are liable to come in contact with the same.]
    The defendant has filed a cross bill, in addition to its answer to plaintiff’s bill of complaint, in which complaint is made that plaintiff company is operated and managed by the same management as that controlling and managing the Lycoming Electric Company, and that both companies maintain separate pole line constructions and are supplied with electricity from the same electric plant. That they were originally competitors for business and had up to 1889 been operated under separate and independent management and control.
    The evidence shows that these companies are distinct corporations and preserve their distinct corporate entity. That whilst they have the same officers, receive their electrical supply from the same plant, yet are separate and distinct in the exercise of their corporate rights and transact their business separate and distinct from each other.
    That each company supplies a different class of currents of electricity from the other, and maintains distinct and separate systems of poles and wires, the same as originally built and operated, except as to such extensions, additions and alterations as the necessities of the business of each company required; and that the maintenance of both systems separate and distinct is necessary in conducting and supplying the different currents of electricity carried and supplied by them respectively, and that both construction and systems were so maintained when the defendant company first constructed its poles and wires upon the streets occupied by either.
    We are unable to find in the evidence anything that would warrant the conclusion that there was an unlawful combination of these companies, or that either company has transcended its lawful authority in the maintenance of its separate pole and wires upon the streets of the city of Williamsport.
    It is also complained and charged by the defendant that the plaintiff,- at the time of filing the cross bill, maintained its pole line construction, cross arms, and poles so decayed as to be unsafe and liable to cause injury to the employees and property of defendant, by breaking or falling and thereby coming in contact with the pole line construction of the defendant.

      In this connection the evidence does show that there were maintained some such poles and cross arms, which, by reason of age and exposure to the elements, had become decayed and should be replaced with other safe and suitable poles and cross arms where the same has not already been done by the plaintiff.
    It is also complained by the defendant in its cross bill that the plaintiff maintains in its construction copper wires which are not insulated and others upon which the insulation is defective. In reference thereto it is shown that at the time of the original construction of the plaintiff’s system insulated wires were little, if at all, in common use, and that in all reconstruction work or repair work the latest approved insulated wires are used by it, and have been since the adoption of insulated wires in electric pole line construction.
    It is further contended by the plaintiff that neither insulation nor the want of insulation furnishes justification on the part of the defendant in allowing its construction to come in contact or in dangerously close proximity to the wires and construction of the plaintiff.
    The evidence shows that under certain conditions the best quality of insulation in use will lessen the immediate danger from contact, but that such insulation will not insulate or prevent injury from contact under all circumstances; that contact continued for a longer or shorter period will wear off the insulation; that moisture will to a large extent cause electric current to pass through the insulation. That high tension wires with a voltage above three thousand will melt and destroy the best insulation when the wire is wet, and that much less voltage will melt and destroy the most insulation in common use.
    In dealing with this subject we are but considering that which affects and concerns the defendant in the issue here joined, and are not called upon to say that the want of insulation or of more perfect insulation might or might not form the basis of complaint by one who, from no negligence of his own, sustains injury from contact with such wires. For the purposes of this issue we assume and cannot otherwise than assume under the evidence that all electric wires, charged with a high voltage, are dangerous to life and property, whether insulated or not, and that the only way to prevent injury to life or property therefrom is to prevent contact that would lead dangerous currents to unprotected persons or property.
    It is also complained in defendant’s cross bill that in localities where the plaintiff has reconstructed its poles and wires on streets occupied by it, and where the defendant has constructed its poles and wires, that due regard has not been paid in the occupancy of space to the situation and needs of the defendant as they had existed before such reconstruction and so as to avoid contact or dangerous proximity, and without due regard to the future growth and expansion of the defendant’s construction.
    [The plaintiff having been first on the ground with its construction is entitled to all the space needed for the maintenance of its construction, not alone for its immediate present needs, but for reasonable anticipated growth and expansion of the business of the company plaintiff.
    There has been considerable evidence introduced upon this subject, but we are not convinced that this complaint is sustained by the evidence. There are places where more cross arms are in place than present needs require, but we are convinced that this applies to all pole line constructions, and that it is the universal custom and practice to make provision for additional lines by the placing of cross arms beyond present needs, and we fail to find in the evidence that such custom has been abused either by the plaintiff or defendant in their constructions.]
    [The place where the greater dispute arises in this connection is at the notheast corner of Third and Hepburn streets, where twenty double cross arms are maintained by plaintiff on a single pole, giving room for one hundred and sixty wires. The main wires of the plaintiff leading from their plant, not far distant, reach this pole and forms the main distributing point for wires running north, east and west through the city, and whilst not all the pins on all the cross arms are in present use, yet taking into view its location and the positive evidence on the part of the plaintiff, as well as all the evidence presented, it seems well established that; considering the past growth of the business of the company, there is no greater provision made for future use and needs at this distributing point than is reasonably required ; and inasmuch as it has not been shown that any of this space so used and occupied had been previously occupied by the defendant compány, or that any conditions there existed, by reason of this construction, which could excuse either contact or dangerous proximity of the construction of the defendant company, either now or in the future, we would not be justified in ordering a change in the construction as here maintained by the plaintiff.]
    There is complaint made of the maintenance by the plaintiff of an iron guard arm at Edwin and Hepburn streets. This arm, we are convinced, should be removed, as it is unnecessary for any purpose whatever. A wooden guard arm would answer all its possible purposes and be less dangerous to life and property.
    [There are numerous points of contact and of dangerous proximity, which we will not mention in detail, charged against the defendant’s pole line construction, some of which have, either in whole or in part, been remedied since plaintiff’s bill has been filed and during ihe progress of the taking of testimony, but suffice it to say that we have carefully examined the evidence relating to all such points of contact and dangerous proximity of wires and have based our conclusions of fact upon sucb evidence.]
    [In conclusion we wish to say that tbe twenty-four-, inch clearance wbicb we have found from tbe evidence to be necessary in electric pole line construction and tbe order and decree wbicb we make in reference thereto, we intend shall apply to all interferences of tbe defendant’s construction with tbe plaintiff’s construction, so far as sucb interference relates to tbe constructions of tbe plaintiff wbicb were prior in time to tbe constructions of tbe defendant, and that in all constructions, where defendant’s construction is or may be prior in time to plaintiff’s construction, tbe same rule of twenty-four inches clearance shall be observed by tbe plaintiff in its construction, our purpose being that this rule shall be equally binding upon both plaintiff and defendant in their pole line construction.]
    CONCLUSIONS OF LAW.
    First: As between electrical companies exercising similar franchises upon tbe same streets priority carries superiority of right.
    Second: Tbe subsequent licensee is under tbe duty to so construct and maintain its wires and lines as not to interfere with tbe right of tbe prior occupant of tbe streets to properly maintain and operate its lines and to transact tbe business it is authorized by its franchise to transact.
    Third: Equity will enjoin all interference of junior companies with senior companies wbicb is not strictly unavoidable, and this without regard to tbe extra cost of tbe methods wbicb might be necessary for tbe junior company to use to prevent sucb interference.
    Fourth: Tbe company having tbe prior right upon tbe street is entitled to as much space therein as is reasonably necessary for tbe safe and successful operation of its line, including any additional space that it may be reasonably anticipated will become necessary in the future for the growth and enlargement of its business.
    Fifth: That there is no right, without the consent of the other party, in one electric light company to attach in any way its wires to the poles of another electric light company, or to attach the wires of another electric light company to its own poles.
    DECREE.
    And now, December 27th, 1910, this case came on to be heard at this term and was argued by counsel and thereupon, upon consideration thereof, it is ordered, adjudged and decreed, as follows, viz:
    First: That the defendant, its officers, agents, servants and employees are enjoined from cutting or removing any of the poles, wires or other appliances of the plaintiff; from placing its poles, wires or other appliances upon any of the poles, wires or other appliances of the plaintiff, from placing its poles, wires and other appliances in close or dangerous proximity to the wires of the plaintiff; from placing or stringing its wires through and between the plan tiff’s wires, and from in any manner interfering with the poles, wires and other appliances of the°plaintiff, or from in any manner placing its poles, wires and appliances so as to injure the property of the plaintiff or the lives or property of the customers of the plaintiff, or those who may come in contact with or use electrical current from the wires of the plaintiff.
    Second: The defendant is ordered to remove its wires and cross arms wherever the same may be in contact with, or within twenty-four inches of, the wires of the plaintiff, in such manner that there shall be a clearance between the nearest wire of the plaintiff and the nearest wire of the defendant of not less than twenty-four inches, and that such clearance shall be hereafter maintained at all places in its pole line construction; to remove all wires running through or between the wires of the plaintiff, or so situated and maintained as to do injury to the property of the plaintiff, or those who may come in. contact with or usé electric currents from the wires of the plaintiff.
    Third: It is further ordered, adjudged and decreed that the plaintiff is enjoined and restrained, in all cases where the defendant now has, or hereafter shall have, priority in point of time in its pole line construction upon the streets, alleys or highways of the city of Williamsport and vicinity, from doing, or causing to be done, any of the acts or things the said defendant is enjoined and restrained from doing, or causing to be done, in the order and decree here entered against said defendant.
    Fourth: It is further ordered, with reference.to such prior constructions of the defendant, that the same clearance of twenty-four inches shall be observed by the plaintiff between its wires and the wires of the defendant as is directed and ordered to be observed by the defendant.
    Fifth: It is further ordered that no iron or other metal guard arm be used by either the plaintiff or defendant in their pole line construction, and that such guard arms be composed of wood, or other equally nonconducting material, and that any metal guard arm now in use be removed and be replaced with wood or other equally non-conducting material, and that the plaintiff remove or replace its metal guard arm as now maintained on its pole at Edwin and Hepburn streets in conformity herewith.
    Sixth: It is further ordered that all poles and cross arms of plaintiff and defendant, wherever the same have become so far decayed as to endanger the property of the other, shall be removed and replaced with safe and suitable material.
    Seventh: It is further ordered that all wires carrying electric current, hereafter strung and put in use in the pole line construction of either plaintiff or defendant, shall be covered with the latest approved insulaton.
    Eighth: It is further ordered that the defendant so change its wires, as now located at the northeast corner of West Fourth and Hepburn streets, as to maintain its higher level and pass over and above the wires of the plaintiff as now maintained.
    Ninth: It is ordered that the defendant pay the record costs and that neither party file bills of costs for witnesses or for subpoenaing the same.

      Error assigned was the decrees of the court.

      Herbert T. Ames and N. M. Edwards, with them T. H. Hammond, for appellant.

      Seth T. McCormick and Candor & Munson, for appellees.
    March 18, 1912:
   Per Curiam,

These cases were heard together in the common pleas and the appeals involve the same questions. The plaintiffs in the bills filed are electric companies haviug the same officers and receiving their current from the same plant, but. are separate and distinct in the exercise of their corporate rights and in the transaction of their business. Each supplies a kind of electric current differing from that supplied by the other and each maintains a distinct system of poles and wire. It is alleged in each bill that the defendant has placed its poles and wires in the city of Williamsport in dangerous and unlawful proximity to the plaintiff’s wires and that it threatens to run its poles and wires between the plaintiff’s wires and to cut and move its wires and to interfere with the proper operation of its lines. The prayer of each bill is for an injunction restraining the defendant from cutting or removing the plaintiff’s poles and wires; from placing its wires on the plaintiff’s poles; from stringing its wires between the plaintiff’s wires or in close or dangerous proximity thereto and to require the removal of poles and wires that interfere with and injure the plaintiff’s property and endanger the lives and property of its customers and for "such other equitable relief as may seem meet in the premises.”

The defendant in these bills filed cross bills in which it complained of interference with its lines by the defendants in the cross bills and prayed the court, "To adjust the conflicting interests between the said Edison Electric Illuminating Company of Williamsport, Pa., and Lycoming Electric Company, defendants in this cross bill, and the said Citizens Electric Company in the occupancy of the streets, lanes and alleys of the city of Williamsport, as far as possible, and to control all, so that each company may exercise its own franchises as fully as is compatible with the necessary exercise of the other’s and so as not unnecessarily to interfere with the other’s rights in the premises.” Thus the whole subject of dispute was brought before the court. An examination of the parts of the testimony to which our attention has been directed has not convinced us that any error was made in the findings of fact; there is certainly none that would warrant our setting aside any of the findings.

We find no merit in the assignments that the decrees are not pursuant to the allegations of the bills nor in conformity to the prayers thereof. Every phase of the controversy was brought before the court either by distinct allegations of particular acts of interference or by general allegations of encroachment and by the prayers of the cross bills the court was asked to adjust the conflicting interest of the three companies and to control all so that each might exercise its rights without interference with the rights of the others. This is what the appellant asked for and what the court did by its decree. The parts of the decrees forbidding the placing of the defendant’s wires “through and between” the plaintiff’s wires and requiring their removal where so placed should not he understood as an absolute prohibition but a prohibition within the distance of twenty-four inches of the plaintiff’s lines as now constructed, with an allowance of space for reasonable anticipated growth and expansion.

The facts found and the conclusions of law thereon are admirably stated in the very clear opinion of the learned judge on which we affirm the decree.

The decree in each case is affirmed at the cost of the appellant.


author: Per Cueiam,

text:
    McGeehan v. Eastern Pennsylvania Railways Co., Appellant.

      Negligence — Street railways — Collision between buggy and car.

    In an action against a street railway company to recover damages for personal injuries, a verdict and judgment for the plaintiff will be sustained where the evidence shows that at the time of the accident plaintiff was riding in a buggy on a dark night along a country road which for a distance of 1,200 feet was practically parallel with the defendant’s tracks, and but a few feet therefrom; that at a point where the tracks curved and crossed the road, the defendant maintained an electric bell which rang automatically when a car was within S00 feet of it; that on the night of the accident the bell was out of order and did not ring, and this condition had been reported to the car dispatcher several hours before; that plaintiff was familiar with the crossing and stopped when about twenty feet from it, and looked and listened for a car and listened for the sound of the electric bell, and continued to look as he advanced to the crossing; that his carriage was struck by a car running in the direction in which he was driving; that trees and underbrush at the side of the road interfered with the view of the tracks; that the car was running at a very rapid rate; and that no notice of its approach was given by gong or whistle.
    Argued Feb. 13,1912.
    Appeal, No. 224, Jan. T., 1911, by defendant from judgment of C. P. Schuylkill Co., March T., 1907, No. 13, on verdict for plaintiff in case of Daniel McGeehan v. Eastern Pennsylvania Railways Company.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Bechtel, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $3,504. Defendant appealed.

      Error assigned, amongst others, was in refusing binding instructions for defendant.

      Otto E. Farquhar and Guy E. Farquhar, for appellant.

      J. O. Ulrich, for appellee.
    March 18, 1912:
   Per Cueiam,

The only question presented by this appeal is whether under all the evidence a verdict should have been directed for the defendant. On a dark night the plaintiff was riding in a buggy on a country road which for a distance of twelve hundred feet was practically parallel with the defendant’s tracks and but a few feet therefrom. At a point where the tracks curved and crossed the road, the defendant maintained an electric bell which rang automatically when a car was within five hundred feet of it. On the night of the accident, the bell was out of order and did not ring and this condition had been reported to the car dispatcher several hours before. The plaintiff was familiar with the crossing and stopped when about twenty feet from it and looked and listened for a car and listened for the sound of the electric bell, and continued to look as he advanced to the crossing. His carriage was struck by a car running in the direction lie was driving. The testimony on behalf of the plaintiff was that the trees and underbrush at the side of the road interfered with a view of the tracks, that the car was running at a very rapid rate and that no notice of its approach was given by gong or whistle. This made out a prima facie case of negligence by the motorman without disclosing negligence by the plaintiff. The case was therefore for the jury.

The judgment is affirmed.


author: Pee Cueiam,

text:
    Hicks, Appellant, v. Williamsport.

      Hoad law — Change of grade — Physical change — Authority of councils.

    Damages are not recoverable for a change of grade of a street until the actual work on the ground is begun. It is the physical change and not the mere establishment of the grade on the official plan that gives the right, and such grading must be done only by the authority of the city councils exercised in the manner prescribed by law. Work done by a street commissioner without authority of a city ordinance does not constitute a legal change of grade which will confer upon the owner of abutting property a right for damages.
    Argued Feb. 13,1912.
    Appeal No. 267, Jan. T., 1911, by plaintiff from judgment of C. P. Lycoming Co., Dec. T., 1909, No. 281, on verdict for defendant in cáse of T. M. B. Hicks v. City of Williamsport.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from award of jury of view. Before Hart, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for the defendant.

      John J. Reardon, with him S. T. McCormick and T. M. B. Hicks, for appellant,
    cited: Lewis v. Darby Borough, 166 Pa. 613; Devlin v. Philadelphia, 206 Pa. 518; Greentree Ave., 21 Pa. Super. Ct. 177; Thirteenth Street, 38 Pa. Super. Ct. 265; Hill v. Oakmont Borough, 47 Pa. Super. Ct. 261; Church v. Milwaukee, 31 Wis. 512; Meinzer v. Racine City, 70 Wis. 561 (36 N. W. Repr. 260).

      Frank P. Cummings, for appellee,
    cited: Stork v. Phila., 195 Pa. 101; Steelton Borough v. Booser, 162 Pa. 630; Phila. v. Weaver, 14 Pa. Super. Ct. 293; Clark v. Phila., 171 Pa. 30; Thirteenth Street, 38 Pa. Super. Ct. 265; Devlin v. Philadelphia, 206 Pa. 518; Howley v. Pittsburg, 204 Pa. 428; J. G. Brill Co. v. Philadelphia, 167 Pa. 1; Change of Grade in Plan 166, 143 Pa. 414; York v. Beitzel, 41 Pa. Super. Ct. 194; Kittanning Borough v. Thompson, 211 Pa. 169; South Twelfth Street, 217 Pa. 362; Hale v. Hale, 32 Pa. Super. Ct. 37; Stockley v. McClurg, 14 Pa. Super. Ct. 629; Clark v. Lindsay, 7 Pa. Super. Ct. 43; Black v. Isaacman, 44 Pa. Super. Ct. 476; Park Ave. Sewers, 169 Pa. 433.
    March 18, 1912:
   Pee Cueiam,

The city of Williamsport in 1900 adopted a grade for two intersecting streets that had been laid out and opened many years before. The new paper grade differed somewhat from the actual surface of the streets and was made with a view to future improvements. No legislative action was ever taken by the city for the grading of these streets. In 1909, the city engineer set stakes at the intersection where the plaintiff’s lot is situate in accordance with the new grade and the street commissioner constructed a concrete crossing which was lower than the original surface of the street and twenty inches lower than the sidewalk. A step a foot high was made at the end of the crossing to afford easier passage between the crossing and the footways. Subsequently the street commissioner without authority from any one cut down the sidewalks at the street lines to a level with the crossing and sloped them back some twenty feet so as to make a gradual incline. On the theory that the work done by the street commissioner was a partial execution by the city of the grading of the streets to conform with the paper grade established in 1900, the plaintiff petitioned for the appointment of viewers to assess the damages that would result from the completion of the whole work of grading. The viewers reported that the ordinance fixing a grade did not authorize the doing of the work without further action of the councils and that the plaintiff was not entitled to recover. On the trial of the appeal to the common pleas a verdict was directed for the defendant.

It is the physical change and not the mere establishment of a grade on the official plan that gives a right of action and damages are not recoverable for a change of grade until the actual work on the ground is begun. Howley v. Pittsburgh, 204 Pa. 428; Devlin v. Philadelphia, 206 Pa. 518; and the grading could be done only by the authority of the city councils exercised in the manner prescribed by law. Kittanning Borough v. Thompson, 211 Pa. 169. The work done by the street commissioner was not done in pursuance of any authority by the city to change the grade and without such authority by proper legislative action, no change of grade could be made. In this proceeding the plaintiff was not entitled to recover.

The judgment is affirmed.


author: Mr. Justice Elkin,

text:
    Stevenson v. Bannan, Appellant.

      Principal and agent — Real estate broker — Commissions—Procuring a purchaser.

    1. A real estate broker who seeks to recover a commission must prove either that a sale was made to the party whom he procured as a purchaser, or that the purchaser was able and willing to buy, and the failure to make an actual sale was through no fault of the broker or his customer.
    2. A broker is not entitled to commissions where he is unable to show anything more than negotiations which never ripened into a purchase, or an agreement to purchase, or even an intention to buy upon any definite fixed terms.
    Argued Feb. 14, 1012.
    Appeal No. 17, Jan. T., 1912, by defendant from judgment of C. P. Schuylkill Co., March T., 1909, No. 197, on verdict for plaintiff in case of J. G. Stevenson v. Francis B. Bannan, Executors of the Estate of John Bannan, deceased.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Assumpsit by a real estate broker to recover commissions.
    The opinion of the Supreme Court states the case.
    Defendant presented the following points:
    “1. That the plaintiff failed to prove that he had procured a purchaser who stood ready, able and willing to buy the property concerned in this suit, in order that the partition proceedings might be carried to their final consummation, and therefore the verdict of the jury must be for the defendant.

      “Answer. — We decline to affirm this point, but leave the question entirely to this jury as to the fact as to purchaser, etc.” (4)

      “2. That under all the evidence in the case the plaintiff failed to prove that George M. Watson of Scranton whether the plaintiff proved that he had procured a was the person whom he procured as a purchaser for said property, and that he stood ready, able and willing to buy the same in order that the partition proceedings might be carried to their final consummation, and therefore the verdict must be for the defendant.

      “Answer. — We decline to affirm that for the same reasons as stated before and as stated in our general charge. It involves a question of fact that I will leave to this jury, and we will not take it from them to traverse the facts.” (5)
    “4. Under all the evidence in the case, the verdict must be for the defendant.

      “Answer. — We decline to affirm that.” (6)
    “Mr. Roads asks the Court to direct a verdict in favor of the defendant.”
    “The Court: The evidence is in Mr. Stevenson and —he paid that he had a party ready to bid; but in what capacity he was going to bid is in doubt, and that part we are going to leave to the jury. We are going to leave that whole matter to the jury. We therefore adhere to our position and decline to direct this jury to render a verdict in favor of the defendant.” (7)
    Verdict and judgment for plaintiff for $4,522. Defendant appealed.

      Errors assigned, among others, was (4 — 7) above instructions quoting them.

      George M. Roads, for appellant, cited:
    Hyatt v. Johnston, 91 Pa. 196; Bradly v. Potts, 155 Pa. 418; McKnight v. Bell, 135 Pa. 358.

      George W. Dyson and William Wilhelm, for appellee.
    March 18, 1912:
   Opinion by

Mr. Justice Elkin,

When this case was here before on an appeal from an order discharging the rule for judgment for want of a sufficient affidavit of defense, it was decided “that it was the intention of the parties that the plaintiff should procure a buyer, not that he should be paid a commission in any event:” Stevenson v. Bannan, 227 Pa. 498. The order discharging the rule for judgment was affirmed here for the reasons stated in the opinion of the learned court below. One of the reasons then stated by the court below for refusing judgment, was: “We do not construe this agreement to mean that the plaintiff shall do nothing, but that his compensation of ten per centum hinges upon the fact of his procuring a purchaser who is ready, able and willing to buy the land in question, providing it is offered for sale.” It will thus be seen that the court below and here construed the agreement to mean that the plaintiff was required to produce a purchaser, ready, able and willing to buy in order to sustain his action for commissions. The case was then sent back for trial and the controlling question raised in the present appeal is whether the evidence offered by plaintiff is sufficient to meet the requirements of the rule above stated. A broker who seeks to recover a commission must prove either that a sale was made to the party whom he procured as a purchaser, or that the purchaser was able and willing to buy, and the failure to make an actual sale was through no fault of the broker or his customer: Kifer v. Yoder, 198 Pa. 308. In the present case it is a conceded fact that the broker did not procure the purchaser of the property, and his right to recover must depend solely and alone upon the fact whether he had procured a prospective purchaser able and willing to buy. In his amended statement the plaintiff averred that he stood ready at all times to perform his contract and that he had procured a purchaser ready, able and willing to buy the property. In his bill of particulars he named G-. M. Watson as the prospective buyer and the case went to trial upon the pleadings thus made up. Watson, called as a witness for the plaintiff, was asked if he had at any time agreed to bny the property, and answered in the negative. He testified in part as follows: “Q. You did not say you would buy it at any time, did you? A. No. Q. Are you quite clear about that? A. I did not tell you that I would buy that property; I never told you that. Q. Nor Mr. Bannan? A. No, sir; I never told him. Q. And you were acting as agent for others? A. Yes, sir; I did not disclose the fact.” It thus appears from the testimony offered by the plaintiff that Watson in his own right was not even considering v. purchase of the property and he never said to anyone that he would purchase it at any price. Even if we should consider the pleadings sufficient to justify an offer that Watson was acting as agent for others, and this would be giving a latitude not to be commended in practice, the evidence is not sufficient to establish an agency binding upon the principals. Indeed, as we read the testimony the relation of principal and agent did not exist between the parties. Watson simply called the property to the attention of several parties whom he assumed might consider such a purchase. He was not the agent of these parties in any proper legal sense and there is nothing in the record to show anything more than negotiations which never ripened into a purchase, or an agreement to purchase, or even an intention to buy upon any definite fixed terms. Indeed, neither Stevenson nor Bannan knew anything about the so-called principals, or that they were even considering a possible purchase of the property. No price was agreed upon, no terms were specified, and no agreement to purchase was ever made. Certainly, under these circumstances it cannot be said that a purchaser ready, able and willing to buy was procured. We have no doubt that Stevenson acted in entire good faith and stood ready as he avers to perform his part of the contract, but this is not sufficient to sustain a recovery. He must in addition show that Ms efforts resulted in procuring a purchaser and tMs he failed to do.

Judgment reversed.