text:
    McMillin v. Titus, Appellant.

      Contract — Construction of contract — Subject-matter—Repugnant clauses —Prior negotiations — Circumstances surrounding parties — Interpretation by parties — Oil lease — Coal—Mines and mining.

    In construing a contract the language should be interpreted so that the agreement as a whole may be carried into effect. If possible, no part of the contract is to be disregarded or treated as redundant. Repugnant clauses must be reconciled if it can be done.
    In ascertaining the intention of the parties to a contract where the writing is ambiguous, or where there are apparently repugnant clauses, it is proper to take into consideration all the negotiations leading to the formation of the contract, its subject-matter, the purpose to be effected, the consideration passing between the parties, and also all the circumstances surrounding the parties when they entered into the agreement.
    Where the parties have interpreted the contract themselves and acted upon such interpretation, the court wiE regard it as the proper one, and enforce it accordingly.
    Facts of public notoriety relating to the subject of a contract must be presumed to have been known to the parties at the time of making the contract and the language used must be construed in reference to such facts.
    On an issue framed under the Act of June 10, 1893, P. L. 415, to-determine title to coal and other minerals underlying land of the defendant, it appeared that thirty-eight years prior to the framing of the issue defendant’s predecessor in title executed a paper granting and leasing to the plaintiffs’ predecessors in title the right and privilege of prospecting for coal, oil or other minerals, and for salt, oil or other substances in and upon the land in question, and the right and privilege to dig, excavate and bore and sink pits and wells for any or all of the said coal, ore, salt, oil or other minerals, and to remove and take the same out of the earth. All interest of the grantor to the coal, oil, ore or other minerals was released. The grantees were given certain surface privileges “and the free use of as much wood and coal as may be required to operate the machinery in sinking or pumping any or all wells that may be sunk by the said parties.” A money consideration was mentioned in the deed, and it was also provided that if oil should be found in paying quantities a further sum stated should be paid. At the time this paper was executed an oil excitement prevailed in the neighborhood, and prior to the execution of the paper two wells had been put down on the property. Coal existed on the land, and was mined for domestic purposes, but not commercially. The grantees under the paper operated the land for oil, found it in paying quantities and paid the additional compensation. Fifteen years afterwards the lessees and those holding under them abandoned the oil wells. They never opened any mines for coal. The coal, however, was continually mined for domestic purposes by the defendant and his predecessors in title. Defendant’s immediate predecessor in title conveyed the land to him, “subject to such restrictions and leases as are now held upon said premises.” Taxes on the whole property were continually paid by defendant and his predecessors. During the fifteen years prior to the framing of the issue, plaintiffs had made no claim whatever to the coal, oil or other minerals in the land. Held (.1), that the paper in question was a lease of the oil, gas and salt; (2) that the lease had been abandoned; and (3) that the defendant on the uncontradicted evidence was entitled to a verdict and judgment in his favor in the issue framed.

      Landlord and tenant — Abandonment—Court and jury.

    Abandonment ordinarily is a question of fact to be determined by a jury under all the circumstances of the case. There must be an intention to abandon as well as an actual abandonment of the property and usually it is necessary for the jury to determine these facts, but where there is no dispute as to the facts, and no testimony offered in contradiction of the evidence to establish the abandonment, and the credibility of the witnesses on the part of the lessor is not attacked or in any way impugned, and the evidence is clear and explicit and the inferences to be drawn from it certain and not open to doubt, and the case is such that if it was before a court and jury, the court would not sustain a verdict which did not find that the lessee had abandoned the premises, it is the duty of the court to determine the law from the admitted facts and to direct a verdict accordingly.
    Argued Oct. 12, 1908.
    Appeal, No. 103, Oct. T., 1908, by defendant, from judgment of C. P. Greene Co., May T., 1905, No. 86, on verdict for plaintiffs in case of Mary B. McMillin et al. v. L. C. Titus.
    Before Mitchell, C. J., Pell, Brown, Mbstrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Issue to determine title to minerals. Before Holt, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiffs. Defendant appealed.

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

      J. W. Bay, with him H. C. Staggers, for appellant.

      A. F. Silveus, with him James J. Purman and Willis F. McCook, for appellees.
    January 4, 1909:
   Opinion by

Mr. Justice Mestrezat,

In construing a contract, the language should be interpreted so that the agreement as a whole may be carried into effect. If possible, no part of the contract is to be disregarded or treated as redundant. Repugnant clauses must be reconciled if it can be done. It cannot be assumed that the parties inserted repugnant or contradictory clauses or sentences in their contract, and, therefore, when there is an apparent contradiction in different parts of the instrument, it must be reconciled if possible so that the whole agreement will be given effect as expressing the intention of the parties. In ascertaining their intention, it is proper to take into consideration all the negotiations leading to the formation of the contract, its subject-matter, the purpose to be effected, the consideration passing between the parties, and also all the circumstances surrounding the parties when they entered into the agreement. Where the terms of the promise admit of .more senses than one, the promise is to be performed in that sense in which the promissor apprehended at the time the promisee received it: Williamson v. McClure, 37 Pa. 402, 408. Every agreement is to be interpreted and construed with reference to the circumstances under which the parties contract: Coulter, J., in Callen v. Kilty, 14 Pa. 286, 288. The words of a grant are to receive a reasonable construction, and one that will accord with the intention of the parties; and, in order to ascertain their intention, the court must look at the circumstances under which the grant was made: Connery v. Brooke, 73 Pa. 80, 83. A contract should be construed in the light of the surrounding circumstances and the objects manifestly to be accomplished: Richardson v. Clements, 89 Pa. 503, 505; McKeesport Machine Co. v. Insurance Co., 173 Pa. 53, 57.

Where the parties have interpreted the contract themselves and acted upon such interpretation, the court will regard it as the proper one and enforce it accordingly. “When a contract is capable of two different interpretations,” says Agnew, J., in Gass’s Appeal, 73 Pa. 39, 48, “that which the parties themselves have always put upon it, and acted upon, especially as here for a long series of years, a court will follow, because it is the true intent and meaning of the parties which are to be sought for in the language they use.” Courts will, if they can, give to the contracts of parties the exact effect which the parties themselves gave to them, and interpret them just as they interpreted them: Gillespie v. Iseman, 210 Pa. 1. When the court is asked to say what the parties meant or intended by their contract, it is entirely safe to point to their own construction of it, as evidenced by their course of dealing under it: People’s Natural Gas Co. v. Braddock Wire Co., 155 Pa. 22, 25. Facts of public notoriety relating to the subject of a contract must be presumed to have been known to the parties at the time of making the contract, and the language used must be construed in reference to such facts: 9 Cyclopedia of Law & Procedure, 588.

An important and controlling question involved in this case requires the interpretation of a written contract. In the early part of 1864, Solomon Elliott, of Wharton township, Fayette county, procured a patent for a tract of land, containing about 108 acres, lying on both sides of Dunkard creek, and about one mile from the mouth of the creek, in Greene county. Within a year or two after he had obtained the patent, Elliott removed to the premises where he continued to reside until 1870. In that year he sold and conveyed the land to Levi Titus, “subject to such restrictions and leases as are now held upon said premises by the Seaton and Pioneer Oil and Mineral Company,” and Titus at once entered into possession of it. For seven or eight yours Benjamin Titus, the son of the owner, resided on the land. L. C. Titus, another son of the owner, and the defendant in this action, then removed to the land and has since occupied it. Levi Titus died in 1886 and shortly thereafter about seventy-seven acres of the farm were awarded to L. C. Titus in partition.

Of these seventy-seven acres of land, about thirty-three acres are underlaid with the Pittsburg or River vein of coal. Titus sold this coal in 1902, and went to Waynesburg, the county seat of Greene county, to procure an abstract of title. Then he learned for the first time that there was on record an instrument in writing purporting to place the title to the coal in other parties. Upon examination, there was found the record of a paper, dated June 4, 1864, between Solomon Elliott of Wharton township of the first part and Charles S. Seaton and George W. K. Minor of the second part, all of Fayette county. The paper was signed by both parties. By this paper, Elliott for the consideration of $300, paid him in hand, and a further consideration of $500 to be paid him out of the oil obtained on the premises “ granted,. bargained, demised and leased .... to Seaton and Minor, their heirs and assigns, the sole and separate and exclusive right and privilege of prospecting, examining and searching for coal, ore, or other minerals and for salt, oil, carbon oil, or other substances in and upon” his tract of land in Dunkard township; “and the right and privilege to dig, excavate, bore and sink pits and wells for any or all of the said coal, ore, salt, oil, carbon oil or other minerals and substances and to remove and take the same out of the earth on the premises aforesaid, hereby granting and releasing to the said party of the second part .... all interest of the said party of the first part to the coal, ore, oil, carbon oil or other minerals and substances in or upon and under the same.” The second parties were to have “the free use of erecting all necessary machinery and frames and vats to bore, dig and sink pits or wells and the free use of one acre of land at or immediately around each pit or well which said parties of the second part .... may sink or dig upon said land and for erecting the buildings necessary to operate in digging and sinking said wells or pits and in working them after being sunk, in taking therefrom salt, oil, carbon oil, coal, ore or any other minerals or substances, and the free use of as much wood and coal as may be required to operate the machinery in sinking or pumping any or all wells that may be sunk by the said parties.” It is further provided that “in case the said parties of the second part succeed in finding oil in sufficient quantities to justify operating any well sunk upon said land say ten barrels per day then the said parties of the second part agree to pay the said Solomon Elliott the additional sum of $500.00 as soon' as enough oil is realized to amount in value to that sum and the same been put into rrlarket.” An habendum and tenendum clause follows this stipulation.

In August, 1902, Titus presented his petition to the common pleas of Greene county averring, inter alia, the existence of the Elliott paper and asked that the court frame an issue under the Act of June 10, 1893, P. L. 415, between him and the plaintiffs in this action “to settle and determine their respective rights and title in and to ” the coal and other minerals in and underlying the tract of land of which he claimed to be the owner. An issue was framed in which the successors in title to Seaton and Minor, claiming the two-thirds of the coal and other minerals, were made plaintiffs and Titus was made defendant. On the trial of the cause in the common pleas, the plaintiffs relied upon the paper of June 4, 1864, to establish their title. It was contended by the plaintiffs, and so held by the court, that the paper vested in Seaton and Minor the coal, oil and other minerals in fee, and therefore the plaintiffs, their grantees or assignees, took a fee simple title to all the minerals, in-eluding the coal in and under the defendant's tract of land. The court submitted to the jury to find whether the defendant had established a title to the minerals by adverse possession. A verdict was rendered for the plaintiff, and from the judgment entered thereon this appeal has been taken.

We are all of opinion that the learned court below was in error in construing the paper in question, to be a deed conveying in fee simple the minerals under the Titus land. The instrument must be interpreted in the light of the then existing conditions, of the acts of the parties, and the manifest purpose the parties had in view in executing it. It appears from the evidence that in the early sixties oil was discovered on Dunkard creek in Greene county, and that there followed in that territory the usual excitement accompanying such discoveries. Drilling operations began at several points on the creek. Prior to the execution of this paper, there had been at least two wells put down on the Elliott property. Seaton and his associates were also operating wells on the Mapel farm at Bobtown, within a short distance of the Elliott farm. There were also operations for oil and gas on the Six farm adjoining, or in the immediate vicinity of, the Elliott farm. The existence of the Pittsburg or River vein of coal under the land was well known at that time. In fact, this vein of coal had been opened at a point on the farm where it outcropped on the south side of, and about thirty or forty feet above, the creek, and where it could be seen by all persons passing along the public road. The coal mined was utilized simply for domestic purposes, and beyond that there was no market for it. As the testimony shows the only implements used in mining were a pick, a shovel and a wheelbarrow. These conditions existed at the time Seaton and Minor obtained from Solomon Elliott the paper of June 4, 1864.

In the light of the undisputed facts and the acts and declarations of the parties, it is apparent that the instrument under consideration was not intended by the parties to be a deed conveying in fee simple the coal under the Elliott farm. What Seaton and Minor wanted and what Elliott granted, by the paper executed by them, was a lease of the oil, gas and salt on the demised premises. As we have seen, at the time this paper was signed, there were several parties operating for oil in that territory. Seaton and Minor themselves were drilling and operating wells on the Mapel farm near the Elliott land when they procured this paper and they began at once drilling for oil on the Elliott farm. Several wells were put down by them on the farm. Some of the wells at least produced oil in paying quantities, and they paid the additional consideration provided in the contract. For several years the operations for oil were continued by these parties, and finally they disposed of their interests to others. But Seaton and Minor never exercised any acts of ownership over the Elliott farm save for the purpose of “prospecting, examining and searching,” and drilling for and pumping oil. Nor did the successors to Seaton and Minor make any other use of the leased premises. They simply operated the oil wells which had been drilled, and drilled other wells for the purpose of obtaining oil. From the day the lease was signed in 1864 until the premises were vacated and abandoned in 1879, fifteen years thereafter, the lessees and those holding under them did not “prospect, examine or search” for coal or “dig, excavate, bore or sink pits and wells” for it. The lessees opened no mines for operating the coal on the premises nor did their successors in title ever attempt to exercise any ownership over the coal or any other mineral except the oil. On. the other hand, Elliott and his successors in title mined and used the coal as fee simple owners.

Now looking at the terms of the instrument itself, we see that it does not grant, bargain and sell the coal, or the right to mine, extract or remove it. On the contrary, the language used is that ordinarily employed, although not exactly in the same form, in leasing lands for oil purposes. Elliott granted and leased the “right and privilege of prospecting, examining and searching” for the minerals. If they were found, the lessee was to have “the right and privilege to dig, excavate and bore” for them. The other language of the instrument is also strongly suggestive of a lease for oil and gas purposes. As in ordinary oil leases, reservations were made of a certain part of the farm on which the buildings were erected, of the use of ground around the well, and of ground for erecting machinery, frames and vats. The lease also provides for an additional consideration if oil in paying quantities is found. The original consideration, $300, was manifestly for the right to occupy the premises and explore for oil, being the usual bonus given for oil leases.

In addition to these considerations, impelling the inevitable conclusion that the Elliott paper was a lease of the land for oil, gas and salt purposes, a further provision of the instrument, in the light of all the facts, conclusively shows that Elliott did not intend to convey the coal under his premises. After granting the privilege to explore, dig and excavate the minerals, the lease provides that the lessees shall have “the free use of as much wood and coal as may be required to operate the machinery in sinking or pumping any and all wells that may be sunk by the said parties, their heirs &c.” If, as contended by the plaintiffs, the paper is a grant in fee of the coal, what was the necessity for this clause of the agreement? It was entirely superfluous. If the instrument conveyed the coal to Seaton and Minor, they had the right'to dispose of it as they saw proper. They could sell it, or they could use it for fuel in operating the machinery at their oil wells. No such additional provision as the one just quoted was necessary to authorize the lessees to make use of the coal for any purpose. The coal referred to in this stipulation of the agreement was manifestly the Pittsburg or River seam of coal which outcropped on the premises, and which at that time was being mined to supply the country market. This clause of the agreement contradicts the theory of the plaintiffs that Seaton and Minor acquired title to the coal, and the clause shows that it was not the intention of the parties to grant or convey the coal. As all the authorities show, we cannot treat this stipulation of the agreement as surplusage, but it must be considered and enforced if a reasonable construction of the whole agreement will permit. Both parties signed' the agreement, and this is a covenant on the part of Elliott which can be enforced against him. The lessees asserted their rights under this stipulation of the contract, and used coal from the open mine on the premises for operating their - machinery at the oil wells, and for no other purpose.

As a further aid in the interpretation of the agreement, we have the construction placed upon it by the parties themselves. The acts of the parties are consistent only with the view that the instrument was a lease for oil, gas and salt purposes, and the lessees and their successors in title, as appears by the evidence, recognized the instrument simply as an oil lease. They never claimed or asserted any other rights under it. Elliott put the same interpretation on the instrument. In conveying the land in 1870 to Titus, he did not reserve the coal or the right to mine and remove it, but conveyed the land “subject to such restrictions and leases as are now held upon said premises.” The interpretation of the parties should have due weight, if not a controlling influence, with the court in construing the paper.

We need not discuss the authorities referred to by the plaintiffs to sustain the proposition that a conveyance in any of the several forms set forth in the cases cited vests in the grantee a fee in the coal. Those decisions are the law of this state, and we certainly have no intention in this case of overruling them or criticising the principles they establish. In those authorities, there was nothing in the contract then under consideration which made the language ambiguous or the meaning of the parties uncertain. It was just such language as we have time and again declared would pass a title in fee to coal property. The difficulty here, however, is that the contract is ambiguous, and we must look dehors the instrument for light to enable us to determine what purpose the parties had in mind in executing it. If the agreement had simply granted the privilege of digging the coal, or of digging and taking it away, or had expressed in any proper language an unqualified right to mine and remove all the coal, or had leased it for years with the right to mine it, without any qualifying or modifying phrases in the contract, we would have a different question before us. The language of'the instrument itself would have spoken clearly the intention of the parties.

Regarding the instrument in question as a lease of the oil, gas and salt in the Elliott farm, the next and only other question for consideration is, did the lessees or their successors in title abandon the lease? The facts bearing upon this question are not in dispute. The lessees themselves entered at once into the possession of the leasehold and operated the premises for oil for several years. The title passed from them to others, who also continued the operations until 1878 or 1879. If the uncontradicted evidence in the case be believed, the premises were vacated and the lease was abandoned not later than 1879. This is clearly established by the acts and declarations of the parties themselves. In 1879, and possibly prior thereto, the parties had ceased to obtain oil in paying quantities. The boilers, the machinery, and other personal property belonging to the lessees were removed from the premises; and the assignees of the lease, now represented by the plaintiffs, declared that “there was nothing more there for them and that they would not put any more money in it.” During the continuance of the lease and until his death in 1890, Abraham Sterling, one of the owners of the lease, resided within a mile of the Elliott farm. McMillin and Bindley, whose interests are represented by the plaintiffs in this action, did not live in that community. They left the premises in 1879 and never returned, and thereafter never exercised any acts of ownership over the property in any way. The fee in the property was taxed to Elliott until he sold to Levi Titus in 1870. The property was then conveyed to Levi Titus, who paid the taxes until his death in 1886. Thereafter, the part of the premises owned by the defendant has been assessed to him and he has paid the taxes. He also leased the land for oil and gas purposes twice, and, to use his own language, “I have used it (the coal) in every way a man could that owned it.” As shown by the undisputed evidence, since 1879 the plaintiffs and those through whom they claim have not occupied the premises for any purpose, nor did they assert any right or interest in the property until the proceedings were instituted in 1902 by the defendant for the purpose of having the title quieted. During those twenty-three years, none of the plaintiffs or their pred- • ecessors in title ever claimed any interest or right in, or attempted, to exercise any authority over, the defendant’s farm. In fact the plaintiffs declined to assert at law any right or claim under the lease of June 4, 1864, until they were compelled to do so by the mandate of this court: Titus v. Bindley, 210 Pa. 121. It is apparent, therefore, that under the uncontradicted evidence in the case, there was an abandonment of the lease in 1879 by the plaintiffs under which they operated the Elliott premises for oil.

Abandonment ordinarily is a question of fact to be determined by the jury under all the circumstances of the case. There must be an intention to abandon as well as an actual abandonment of the property, and usually it is necessary for the jury to determine those facts. But here there is no dispute as to the facts. There was no testimony offered on the part of the plaintiffs in contradiction of the testimony offered by the defendant to establish the abandonment. The credibility of the witnesses on the part of the defendant was not attacked or in any way impugned. The evidence was clear and explicit, and the inferences to be drawn from it were certain and not open to doubt. If the case was before a court and jury in the common pleas, the court would not sustain a verdict which did not find that the lessees had abandoned the premises. Hence it would be the duty of the court to determine the law from the admitted facts and to direct a verdict accordingly. The learned court below should therefore have affirmed the defendant’s eleventh point and directed a verdict for the defendant. We may do in this instance what the court below should have done. For more than six years, the plaintiffs have, by this litigation, prevented the defendant from selling his coal, and it would be manifestly unjust to send the case back and delay the final disposition of it by directing another trial. The facts not being in dispute, it is our duty to declare the law. This requires us to reverse the judgment of the common pleas and to enter judgment in favor of the defendant.

The judgment of the court below is reversed, and judgment is now entered for the defendant.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Philadelphia Company v. Renner, Appellant.

      Lease — Oil lease — Forfeiture—Payment by check — Clearing house.

    Where an oil lease provides for payment of rental by cheek or draft, the lessor cannot forfeit the lease merely because the check sent to him had printed across its face the words “payable only through the Pitts-burg Clearing House,” the check being perfectly good and payable.
    Argued Oct. 12, 1908.
    Appeal, No. 173, Oct. T., 1908, by-defendants, from decree of C. P. Greene Co., No. 135, in equity on bill in equity in case of Philadelphia Company and The Fisher Oil Company v. Baronett F. Renner and Martha J. Renner.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction to restrain interference with oil property. Before Inghram, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was the decree awarding and continuing the injunction.

      James J. Purman, with him Frank W. Downey, for appellants.
    The words: “payable only through Pittsburg Clearing House,” destroyed the right to demand the money and limited the manner of payment: Gray v. Donahoe, 4 Watts, 400; Crane v. Bank, 173 Pa. 566; Philler v. Patterson, 168 Pa. 468.

      A. H. Sayers, for appellees,
    was not heard.
    January 4, 1909:
   Opinion by

Mr. Justice Elkin,

As this case has develo*ped, the only question to be determined here is whether at the time this proceeding was instituted there had been a forfeiture of the lease by failure to pay the rental according to the terms of the contract. The appellants claim the right to declare a forfeiture which the appellees deny. The clause under which a forfeiture is asserted provides that the lease shall become null and void unless a well shall be completed on the premises within sixty days from the date thereof, or unless the lessee shall pay at the rate of $30.00 quarterly, in advance, for each additional three months such completion is delayed. The well was not completed within sixty days, but the quarterly payments were made from time to time during a period of nine years up to and including the rental due August 17, 1907, as to which payment the controversy in the present proceeding arises. The lease provides that the quarterly payments may be made direct to the lessors, or to Baronett F. Renner, one of the complainants, at Garrison post office by check or draft. Payment was tendered in due time by a check or draft, drawn upon the Farmers' Deposit National Bank of Pittsburg, for the sum of $30.00, which check or draft was deposited in the mails for transmission and was received by Renner, November 16,1907, one day before the payment was due. He refused to accept the draft and returned the same by first mail to the lessee upon the ground that across its face were printed the words “payable only through the Pittsburg Clearing House,” the contention then and now being that a draft made payable through the clearing house was not a compliance with the contract. The objection is too technical to be substantial. The contract only provided that the payment could be made by check or draft, and nothing is said about the method of collection. What Renner had the right to demand was a check or draft, drawn by the lessee on a bank which when paid was a compliance with the very letter of the covenant. He received in due time a draft drawn upon a responsible banking institution, calling for the payment of the proper sum to meet the advance rental, and all that he had to do was to deposit it for credit with the bank in which he did business and collection would follow in due course of banking. -The fact of payment was what the lessor was interested in and not the method of making it, so long as the terms of the contract were not violated. It was immaterial to the lessor whether the draft was paid over the counter of the banking institution drawn upon or through the clearing house, if in point of fact it was paid or would have been paid and he had received or would have received the benefit of it. That the draft was good is not denied, and, that it would have been paid through the clearing house, if presented, is not questioned. Certainly, under these circumstances, complainant was not justified in returning the draft and declaring a forfeiture of the lease. For a long period of years the lessee had paid the quarterly rentals by draft just as was done in this instance, except the former drafts were not made payable through the clearing house, but, as hereinbefore suggested, this at most only affected the method of collection in due course of banking and did not deny to the lessor any substantial right under the contract.

We find no reversible error and the decree is affirmed at the cost of appellants.


author: Mr. Justice Brown,

text:
    Johnston’s Estate.

      Appeals — Assignments of error — Exceptions—Decree—Orphans’ court.

    Assignments of error to the dismissal of. exceptions to an executor’s account by the orphans’ court must set forth the exceptions in their exact words.
    The opinion of the orphans’ court is not assignable as error. It is the decree to which error lies.
    Argued Oct. 12, 1908.
    Appeal, No. 23, Oct. T., 1908, by Katharine J. Sutton, from decree of O. C. Indiana Co., Dec. T., 1906, No. 26, dismissing exceptions to account of John B. Taylor, administrator of estate of S. A. Johnston, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Appeal dismissed.
    Exceptions to administrator’s account.
    The opinion of the Supreme Court states the case.

      Errors assigned were in allowing certain credits to the accountant, but not setting forth the exceptions in their exact words, nor the decree of the court.

      John P. Blair, for appellant.

      D. B. Taylor, for appellee.
    January 4, 1909:
   Opinion by

Mr. Justice Brown,

This appeal is from the action of the court below in disposing of ten exceptions to the account of John B. Taylor, administrator of the estate of S. A. Johnston, -deceased. By these exceptions the appellant sought to surcharge the accountant on certain items with which he had charged himself at their appraisement in the inventory; to have credits disallowed for depreciation in the appraised value of other items; to have him charged with more interest than he charged himself with, and to reduce his commissions and the fee charged by his attorney. Five of these exceptions, among them being those relating to the commissions of the accountant and .the attorney fee, were dismissed, and the remaining sustained, resulting in a decree surcharging the accountant with $10,907.05. Our examination of the record has satisfied us that all of the exceptions were properly disposed of and that the decree made was proper, but our reasons for reaching this conclusion would be out of place, as the decree has not been assigned as error. If it is correct, as it must be assumed to be in the absence of an assignment that it is error, the reasons given by the learned judge in arriving at it are unimportant and ours for sustaining it are equally so: Fullerton’s Estate, 146 Pa. 61. The dismissal of no one of the exceptions to the account is 'assigned as error. If any one of them was erroneously dismissed, it ought to appear in its exact words in the assignment of error to its dismissal: Wright’s Estate, 155 Pa. 64. No such assignment is before us.

Appeal dismissed at appellant’s costs.


author: Mr. Justice Mestrezat,

text:
    Dilts v. Plumville Railroad Company, Appellant.

      Railroads — Eminent domain — Location of route.

    By the location of the route of a railroad on the ground by its engineers and its adoption by the company, the title to the route, as against rival corporations, passes to the company which has made the location.

      Railroads — Eminent domain — Appropriation of land — Bond—Title to right of way.

    When the damages due the landowner have been paid or when a bond to secure the damages has been given and accepted by the owner or approved by the common pleas, the title to the right of way passes to the corporation.
    After the bond has been given, the grasp of the owner is released from the property, and he is remitted to the bond for the damages which he may sustain. The right of way passes to a subsequent purcha'ser or mortgagee unincumbered by any claim for damages.

      Railroads — Eminent domain — Condemnation proceedings — Title acquired by railroad.

    The interest which a railroad company acquires in real estate by the right of eminent domain is not a fee, nor is it an easement in the proper sense of that word; it is in substance an interest in the land special and exclusive in its nature.

      Railroads — Eminent domain — Appropriation of land — Abandonment of part of appropriation.

    Where a railroad company under the right of eminent domain enters for the purpose of appropriating land for its right of way, fixes the width of its appropriation, which is approved and adopted by its board of directors, gives a bond to secure the damages resulting from such appropriation, and actually occupies and constructs its road on the land, the railroad company cannot thereafter refuse to take any part of the right of way so as to defeat the owner’s right to damages for the width originally fixed by the company.

      Railroads — Eminent domain — Appropriation of land — Spring of water.

    A railroad company does not by condemning land secure title to the waters of a spring within the limits of the right of way, nor can it sell the water or use it for any purpose whatever. It has, however, the right to use the ground from which the water issues and place thereon its tracks and any structure necessary in the operation of the road; and if in doing so it interferes with the owner’s manner of using the spring, the- latter is entitled to compensation to the extent that the use of the spring is interfered with. If the spring is destroyed, the landowner is entitled to compensation for the value of it.

      Railroads — Eminent domain — Surface support of right of way — Underlying minerals — Damages—Evidence.
    In condemnation proceedings, a railroad company in the exercise of its right of eminent domain secures not only the surface of the land, but also so much of the underlying minerals as may be necessary to support the surface. The company’s entry upon the land is an appropriation of the subjacent strata of coal or other minerals so far as necessary to support the surface for any purpose to which it may be put for railroad uses.
    Where an owner of land has conveyed away the coal under the land and released his right to the support of the surface, and a railroad company subsequently condemns a right of way across the land, both the surface and coal owner are entitled to compensation for the injuries sustained by the appropriation of the right of way. It, therefore, follows that a witness for the surface owner in proceedings to assess damages must know and take into consideration the fact that the ownership of the coal and mining rights is in another person than the owner when he expresses an opinion as to the amount of damages which the surface owner is entitled to receive.
    The fact that a witness in condemnation proceedings would not wish to own a farm after the railroad company’s appropriation of a right of way across it, is immaterial as affecting the damages.
    Argued Oct. 12, 1908.
    Appeal, No. 205, Oct. T., 1908, by defendant, from judgment of C. P. Indiana Co., Sept. T., 1907, No. 208, on verdict for plaintiff in case of Mary J. Dilts v. Plumville Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Appeal from award of viewers. Before Telford, P. J.
    At the trial plaintiff was asked this question:
    “Q. State how much the damage was since the railroad company appropriated your land to itself?
    Objected to as incompetent.
    The Court: Objection overruled, exception noted to defendant, and bill sealed. [4]
    “A. $3,000.”
    St. Clair Thompson was asked these questions:

      “Q. Will you state now what the market value of the land was after the railroad appropriated it to itself?”
    “Q. What do you say? A. I would not want the farm at all.”
    Mr. Channell: We ask to have that stricken from the record.
    The Court: The motion to strike out the answer is refused, an exception is given to defendant and bill sealed. [5]
    Peter Spencer, a witness for plaintiff, was questioned as follows:
    “Q. Will you state what the market value of that land of Mrs. Dilts was without the coal, before the railroad company interfered with it at all.”
    Objected to until they have allowed us to cross-examine the witness.
    Cross-examined by Mr. Channell: “Q. Mr. Spencer, do you know anything about the extent of the mining rights which Mrs. Dilts gave in connection with the sale of her coal? A. Nothing at all.”
    Counsel for defendant objects to this witness testifying as to the value of this land for the reason that he has not yet made himself acquainted with the extent- of the rights which Mrs. Dilts has in the land claimed to be affected.
    The Court: Objection overruled, exception given to defendant and bill sealed. [6]
    Question read:
    “A. I would consider it was worth $28.00 an acre. Q. What would be its market value after the railroad company had constructed its road there? A. I wouldn’t consider it worth more than $12.00 an acre.”
    Silas McManus, a witness for the plaintiff, was asked this question:
    “Q. Will you state the market value of Mrs. Dilts’s. farm without the coal, at the time that the railroad company appropriated a portion of it to its own use for the construction of the road?

      “ Q. Are you acquainted with the extent of the rights which Mrs. Dilts reserved in this farm at the time she sold the coal away? A. No, sir.”
    This is objected to as being irrelevant; also for the reason it appears from his evidence that he' has not been made acquainted with the extent of the rights which Mrs. Dilts had in the land, and which could be affected by the construction of defendant’s road, upon it at the time it was taken.
    The Court: Objection overruled, exception given to defendant and bill sealed. [7]
    Question read:
    Mr. Blair: “Q. What is your answer? A. $50.00 an acre.”
    Alexander Hamilton, a witness for the defendant, was asked this question:
    “Q. What was the market value of the surface to the Mary J. Dilts farm after the Plumville railroad went through it, taking into consideration the advantages and disadvantages occasioned by said construction and operation of said railroad; also taking into consideration that the title to the water in the spring within the right of way of Plumville Railroad Company is in Mary J. Dilts, she having the right to use the whole of the water, the right to conduct it by pipe wherever she desires, the right to consume it, to sell it, or waste it, and having said water piped to her house and barn, and defendant company having-no right to use said water?”
    Mr. Blair: Objected to, first, because the witness has already spoken on the subject of damages, and second, because the question is long and confusing and based in part as something that cannot be sustained, in regard to which there is no sufficient evidence.
    The Court: Objection sustained, exception given to defendant and bill sealed. [8]
    Counsel for defendant offered to file a renunciation dated April 18,1908, which renunciation is signed by all the attorneys of record.
    Counsel for plaintiff ask the defendant as to what effect they expect such an offer as this to have upon the present status of the case; the spring having been appropriated between two and three years ago, and in the meantime greatly damaged, it being impossible for the defendant to restore it to the use of Mrs. Dilts and her family in such condition as it was before the railroad company took it, being in a damaged condition ever since it did take it, and the statements about some former offer being of a loose description and the defendant having had no opportunity during the last two years and more to make some proposition if it wished to, that would be authentic and official, and not leave the subject open to further doubt and further litigation.
    We object to the filing of the paper as well as the paper itself if it is to be received in evidence.
    The Court: As we understand it, the plaintiff declined to accept the renunciation of the portion of the right of way embraced in this paper.
    Mr. Blair: There has been no renunciation offered and nothing that is official or binding upon the company.
    The Court: It appears that this paper proffered to be filed; affecting one element of damage claimed by the plaintiff; if it had been offered at an earlier stage of the case, before the plaintiff had closed, so as to have given an opportunity to meet the question as it would present itself, we might have permitted of its filing, but now the plaintiff has closed and we decline to accept the renunciation proffered in the paper of a portion of the right of way, at this stage of the proceeding; we will therefore sustain the objection to it, and give an exception to the defendant and seal a bill. [9]
    Hamilton was asked this question:
    “ Q. What was the market value of the surface to the Mary J. Dilts farm, after the Plumville Railroad Company went through it considering the title to the water in the spring belongs to Mrs. Dilts?”
    Objected to because under the law and evidence in the case it could not be considered as belonging to Mrs. Dilts. Because the subject-matter has been inquired of already of this witness.
    The Court: Objection sustained, exception given to defendant and bill sealed. [10]
    “Q. Mr. Hamilton, what was the market value of the surface of the Mary J. Dilts farm before the Plumville railroad went through it, said surface being subject to the mining rights conveyed by Mary J. Dilts to the Plum Creek Coal Company, by deed dated July 3,1905, and which you have just heard read to the jury a few moments ago; in which deed she waives the right to surface support, waives the right to damages to land, or structures thereon, damage to spring or water courses therein or thereon, giving the coal company the right to make, maintain and use roads, trolley lines and drains upon or under the surface of said lands, and to locate such buildings and other structures necessary for the mining or operation of said coal?”
    Objected to, because it is long and apt to mislead the witness, and embraces a variety of subjects calculated'to confuse him and interfere with an intelligent answer.
    The Court: Objection sustained, exception given to defendant and bill sealed. [11]
    C. P. Muntch, a witness for the defendant, was asked this question:
    “ Q. Were you in court this morning when the deed was read by which Mrs. Dilts conveyed the coal and certain mining rights in her land to the Plum Creek Coal Company? A. I was present, yes, sir. Q. Considering the effects of that inconvenience upon her farm, and considering your knowledge of values in that vicinity, prior to the time when the defendant entered upon her farm for the purpose of constructing its road, what, in your judgment, was the market value of the surface and rights which Mrs. Dilts had reserved, when she made that sale before the construction of the road, how much per acre?”
    Objected to. We have no objections to them asking the witness what' the value of Mrs. Dilts’s farm was without the coal, but to mix the question up with reservations, rights or rights alleged to be reserved as mining rights, is calculated to confuse and prevent a reaching of the real truth of the case. These mining rights would be or may be the matter of construction for courts. The witness would not be able to put a proper construction upon them.
    The Court: Objection sustained, exception to defendant and bill sealed. [12]

      Plaintiff presented this point:
    [4. There was a spring on plaintiff’s premises. The railroad company could take the bed of the spring and its water if it chose to do so, under powers conferred upon it by the legislature. In the present case it saw fit to appropriate the spring to itself, and having included it within the lines of its survey and appropriation, it became the owner of it, and owned it in the same sense that it owned any other portion of its roadway. It could not do this, however, without rendering to the plaintiff just and full compensation for this loss. This point is affirmed.] [3]
    Defendant presented these points:
    9. The title to the water of a spring within the right of way of the Plumville Railroad Company on the farm of Mary J. Dilts is in Mary J. Dilts, who has the right to use the whole of the water, to conduct it by pipes wherever she desires, to consume it, to sell it, or to waste it. Answer: This point is refused. [1]
    10. The Plumville Railroad Company has no title to the water in the spring within its right of way on the Mary J. Dilts farm, nor has it an easement in the same, and has no right to appropriate or take exclusive possession of the spring itself, or to exclude the owner therefrom. Answer: This point is refused. [2]
    Verdict and judgment for plaintiff for $1,860. Defendant appealed.

      Errors assigned were (1-3) above instructions, quoting them; (4-9) rulings on evidence, quoting the bill of exceptions.

      S. F. Channell and M. C. Watson, with them W. F. Elkin, F. E. Watrous, H. F. Marsh and J. N. Langham, for appellant.
    We think this case is ruled by the case of the Plank Road Company v. Branden, 172 Pa. 460. See also Hasson v. R. R. Co., 8 Phila. 556.
    As we understand the law, before the company could consume this water for the use of its engines it would have to institute condemnation proceedings for that purpose. That the present rights to the water are no more than that of the riparian owner, in which case it could use but a very limited quantity and could not deprive the plaintiff of the water necessary for her domestic use: The Pennsylvania Railroad Company v. Miller, 112 Pa. 34; Kansas Cent. Ry. Co. v. Allen, 22 Kansas, 285; Beacon v. R. R. Co., 1 Pa. Dist. Rep. 618.

      John P. Blair, with him David Blair, for appellee.
    January 4, 1909:
   Opinion by

Mr. Justice Mestrezat,

This is a condemnation proceeding, instituted July 26, 1907, by the plaintiff for the purpose of having determined the damages which she has sustained by reason of the location and construction of the defendant company’s road through her lands in Indiana county. She owns a farm containing sixty-two acres on which are two dwellings houses, one large bam and other outbuildings. The right of way of the defendant’s road through her premises is a strip of land sixty-six feet in width and ninety-six rods in lengths, and contains two and four-tenths acres. In the summer of 1905, the defendant company located its road over the plaintiff’s premises, and the parties failing to agree on the damages due her, the company tendered and the plaintiff accepted a bond. The defendant took possession and commenced the construction of its road on the land on July 18, 1905. Prior to the appropriation of the right of way, as we infer, the plaintiff and her husband, by deed dated July 3, 1905, conveyed to the Plumville Coal Company all the coal in and under her farm, “except two acres underlying the buildings and spring appurtenant thereto,” together with full mining rights authorizing the vendee to mine and remove all the coal without liability for any injury done thereby to the overlying surface or any structures thereon, together also with certain surface privileges reasonably necessary to drain or ventilate the mine, and with the right to make and maintain trolley lines and drains upon or under the surface and to erect on the surface the necessary structures to mine the coal. Viewers were appointed by the court and having made their report, the defendant company appealed to the common pleas. The case was tried in that court last April and resulted in a verdict and judgment for the plaintiff. The defendant has appealed.

The route adopted by a railroad company is in the discretion of the president and board of directors with the exceptions noted in the statute. The location of the route on the ground is made by the engineers of the company, and becomes complete when it has been adopted by the company. The title to the route, as against rival corporations, then passes to the company which has made the location. When this action of the company has been followed by the payment of the damages due the landowner, or when a bond to secure the damages has been given and accepted by the owner or has been approved by the common pleas, the title to the right of way passes to the corporation : Fries v. Southern Pennsylvania Railroad, etc., Company, 85 Pa. 73; Hoffman’s Appeal, 118 Pa. 512; Johnston v. Callery, 173 Pa. 129. In the Fries case it is said (p. 74): “But here the railroad company gave the required bond and entered lawfully. The easement of the company was therefore lawfully acquired, and passed to the purchaser under the mortgage unincumbered by any lien, except the judgment upon the report of viewers, which, however, was obtained after the mortgage had been recorded. As the consequence of these proceedings, the purchaser took a clear title and the landowner was thrown back upon his bond.” In the Johnston case, it is said (p. 137): “It (the selection and adoption of a line for the proposed road) fastens a servitude upon the property affected thereby, and so takes from the owner and appropriates to the use of the corporation. It gives to the latter a standing to settle with and make compensation to the owner for the property thus taken and appropriated to its own use, and, — in case they cannot agree, — to give adequate security for the payment of damages when legally ascertained. Until such compensation is made, or in lieu thereof, approved security is given, the title to the owner is not divested. As against him, the corporation, by its act of location, can acquire only a conditional title which ripens into an absolute one upon making compensation.” After the bond has been given, the grasp of the owner is released from the property, and he is remitted to the bond for the damages which he may sustain by reason of the location and construction of the road through his premises. The right of way passes to a subsequent purchaser or mortgagee unincumbered by any claim for damages. In Hoffman’s Appeal, 118 Pa. 512, pending an appeal by the landowner from the report of viewers assessing damages, the company’s property and franchises were sold under proceedings instituted on a mortgage of the company’s road by the trustee for the bondholders, and on distribution of the fund realized on the sale, the owner of the land was denied the right to recover his damages. It was held that he was confined to his remedy upon the bond. In that case Sterrett, J., delivering the opinion, says (p. 518): “When a sufficient bond with sureties approved by the court, had been given, the company acquires as clear and perfect right to the easement as if it had paid therefor in cash. The landowner’s only remedy is upon the bond in connection with the statutory provision for assessment and collection of damages.” This case is followed in Fischer v. Catawissa Railroad Company, 175 Pa. 554.

The interest which a railroad company acquires in real estate by the right of eminent domain is well settled in this state. It is not a fee nor is it an easement in the proper sense of that word. Our cases have frequently defined it and among them is the Pennsylvania Schuylkill Valley R. R. Co. v. Reading Paper Mills, 149 Pa. 18, which has been frequently approved and followed. In that case, the present chief justice delivering the opinion says (p. 20): “Such title is sometimes called an easement, but it is a right to exclusive possession, to fence in, to build over the whole surface, to raise and maintain any appropriate superstructure including necessary foundations and to deal with it within the limits of railroad uses as absolutely and as uncontrolled as an owner in fee. There was no such easement at common law, and it may well be doubted if it is not a misnomer to extend to this newly invented interest in land the name of easement, perhaps appropriate enough to the railroad’s ordinary right of way for its tracks. It would seem to be rather a fee in the surface and so much beneath as may be necessary for support, though a base or conditional fee, terminable on the cesser of the use for railroad purposes. But whatever it maybe called, it is in substance an interest in the land special and exclusive in its nature and which may be the subject of special injury.”

The title to the right of way having vested in the company for railroad purposes by payment of the damages to the landowner, or by the damages being secured by acceptance of a bond or its approval by the common pleas, the company cannot thereafter discontinue the proceedings and deprive the owner of his right to the damages he has sustained. The title to the property is in the company, and the owner’s right to damages is fixed. The corporation may abandon the right of way and permit it to go back to the owner, but this act will not prevent the owner from enforcing his claim for the damages sustained by him. In Fischer v. The Catawissa Railroad Company, 175 Pa. 554, which was an appeal from the award of viewers assessing damages, the court, on the trial of the cause, permitted the railroad company to withdraw its bond and to discontinue all proceedings for the assessment of damages. This court held that such action was erroneous, and in reversing the order Sterrett, Chief Justice, said (p. 558): “It was unwarranted by any act of assembly or by any of our rulings in the class of cases to which this belongs. As shown by the cases above cited, the effect of the proceedings deliberately instituted by one of the defendants, including the approval and filing of the bond, appointment of viewers, etc., was to divest plaintiff’s right to the possession of the land taken, and remit him to his claim for compensation, under the constitution, secured by the bond, etc. Not only had a divestiture of plaintiff’s right of possession been effected, but, after the approval and filing of the bond defendants were in the actual and rightful possession of the land in question. Under all our decisions it was then too late to discontinue the proceeding.”

1. Before the viewers and subsequently on the trial of the cause in the common pleas, the appellant company’s counsel offered to “renounce any and all rights and privileges which they may have or may be supposed to have in” a part of the right of. way, being thirteen feet in width and 199 feet in length. The viewers very properly disregarded the offer and the court likewise rejected it. The offer was first made more than two years after the right of way had been located, the bond to secure the damages had been accepted by the owner of the premises, and the defendant had taken possession of the land and constructed its railroad thereon. At this time and for the two years immediately preceding, the title to the right of way, including this small portion of it, had been in the appellant company. The owner’s right to possession had been divested, and her right to compensation had vested and been secured by the bond. At any time after the acceptance of the bond by the owner, if the appellant’s property and franchise had been mortgaged or sold, the title to the right of way would have passed, unencumbered by the owner’s claim for damages. The purchaser would have taken the title to the part of the right of way proposed to be renounced, and the owner would have been compelled to look to the bond for her damages. It was therefore not within the power of the appellant company, against the objection of the appellee, to renounce any part of the right of way or reconvey it to her, so as to prevent her from recovering the damages which she had sustained. Such logically follows from the appropriation of the land by the appellant for its right of way and the giving of the bond to secure the damages therefor. It may also be suggested that the renunciation presented to the viewers and to the court was utterly valueless for the purpose, as it discloses no authority on the part of the counsel of the railroad company to dispose of its property by gift or otherwise.

A railroad company may, as contended by appellant’s counsel, limit the width of its appropriation through the owner’s land to less than permitted to be taken by the statute. The width of its right of way cannot exceed sixty-six feet, but it is entirely discretionary with the company whether it shall take that or a lesser width. As plainly pointed out in Jones v. Erie & Wyoming Valley R. R. Co., 144 Pa. 629, it is the duty of the company to define the width of its location when it enters and appropriates the land. In the absence of such action on the part of the company, fixing the width of its right of way, it will be presumed that it has appropriated the full width allowed by its charter. This presumption, however, is only applicable where the entry is adverse and upon properties subject to seizure or appropriation under general laws, and does not apply to the entry upon a public street: Jones v. Erie & Wyoming Valley R. R. Co., 169 Pa. 333. But where a railroad company under the right of eminent domain enters for the purpose of appropriating land for its right of way, fixes the width of its appropriation which is approved and adopted by its board of directors, gives a bond to secure the damages resulting from such appropriation, and actually occupies and constructs its road on the land, the railroad company cannot thereafter refuse to take any part of the right of way so as to defeat the owner’s right to damages for the width originally fixed by the company. The appellant contends that the two cases of Jones v. The Railroad Company, just cited, are authority for a different doctrine, and sustains its contention that the company may renounce its right of way to the small strip of land, 13 by 199 feet, and thereby defeat the owner’s right to damages pro tanto. The cases were between the same parties and arose out of the same facts. A railroad company had located and constructed its road on a street in the city of Scranton. It refused to define the width of its location. If it was sixty feet it took a part of the plaintiff’s premises. He instituted proceedings to have his damages assessed. The company still declined to fix the width of its appropriation and resisted a recovery on the ground that it did not take any of the plaintiff’s property. The trial court held with the defendant and a verdict was had against the plaintiff. On appeal, this court reversed the judgment, holding that as the company had not defined the limits of its appropriation there was a presumption that it took the full width fixed by its charter of incorporation, which would include a portion of the plaintiff’s premises. The court held that in view of the presumption as to the width of the appropriation and of the evidence tending to show that the company had taken the full width allowed by its charter, the case was for the jury. The case was tried again, and another appeal was taken. It was then held that the presumption that the company took the full width allowed by its charter would not prevail in the case because the road was located and constructed on a public street. It was said in the opinion, and upon this the appellant relies to sustain its position in this case, that while the. proper time to define the width of the company’s appropriation is when the appropriation is made, yet the right to define the location may be exercised afterwards, within a reasonable time; that where the right of way has been located but there has been no actual taking of the land, and the railroad has been constructed and is in operation outside of the plaintiff’s boundaries, the company may then define the limits of its right of way and thereby prevent a recovery for land not actually taken. But in these cases, as will be observed, the company had not defined the width of its appropriation nor had compensation been made or secured to the owner for the damages likely to result from the appropriation of the land, and hence the owner’s title had not been divested. A bond had been tendered to the plaintiff but it had not been accepted, nor had a bond been presented to or approved by the court to secure the plaintiff’s damages. The bond which was presented to the owner of the land recited that the defendant “had located its railroad track near the property of the said John Jones, in the city of Scranton, and it is alleged by him that said property is and will be damaged thereby.” It is apparent, therefore, that the cases are not authority for the doctrine contended for by appellant that a railroad company may renounce any part of its right of way after it has appropriated the land and the owner’s title has been divested by his acceptance of a bond.

2. Within the right of way as located by the company, there is a spring of water. The appellant attempted to diminish the damages resulting from the appropriation of the appellee’s land by renouncing the part of the right of way on which the spring was located. As we have seen, the company was properly defeated in its attempt to evade responsibility for damages for this part of its right of way. For injury to the spring, the appellee is entitled to damages. By condemning the land, however, the company does not secure title to the waters of the spring, and hence it cannot sell or dispose of the water, nor can it make use of the water for any purpose whatever. It has the right to conduct it, by proper drainage, onto the lands of the appellee, to whom it belongs and who may dispose of it as she pleases. The appellant’s appropriation of the land interferes with and changes the manner of the appellee’s use of the spring, and to that extent she is injured. Plank Road Company v. Braden, 172 Pa. 460, was a bill filed by a road company, having the right of eminent domain, to prevent the owner of premises through which the company had condemned a right of way from interfering with a spring within the limits of the right of way. It was there held that the title to the water of the spring was in the owner of the fee, and that he had the right to use the whole of the water, to conduct it by pipes wherever he desired, to consume it, to sell it, or to waste it. In delivering the opinion, Mr. Justice Williams says (p. 466): “The plaintiff’s easement qualified the manner in which the defendant might use his spring but it did not qualify his title. The title was as absolute and unqualified to the water as to the rocks out of which it issued, and the defendant had the right to take it where he pleased and use it as he pleased: Mills on Eminent Domain, p. 70. He had no right to use it in such a manner as to inflict injury on the plaintiff’s roadbed but he had the right to use the whole of it, to conduct it by pipes wherever he desired, to consume it, to sell it, or to waste it. The plaintiff has no easement in the spring. It has a right of way for public travel over the land upon which the waters of this spring descended; and for the purpose of preserving its roadbed in a condition suitable for travel it may drain the water off. The right is one of drainage of the roadbed only. It is not a right to appropriate, or to take exclusively possession of, the spring itself, or to exclude the owner therefrom: Mills on Eminent Domain, p. 71 . . . . (p. 467). The corporation has a roadway at the side of which the defendant has a spring. Each must so use its own as to inflict no unnecessary injury on the other, but neither can forcibly exclude the other from what is his own. . . . The corporation may drain its road, but it cannot in the exercise of the right of drainage take forcible possession of this spring, exclude the owner from access to it, and transport it for its own use or the use of any other person off the owner’s land.”

' It follows, therefore, that in assessing the damages sustained by the appellee, she is not entitled to the value of the spring. The title to it remains in her and its water may be used by her. While this is true, yet her use of the water of the spring may be interfered with by the use of the land by the appellant company and for that she is entitled to be compensated. As we have seen, the company has the right to the exclusive possession of the land for railroad purposes, and it may interfere with the spring and the use of it by the owner of the land to any extent found necessary in the use of its right of way for such purposes. It has the right to occupy the whole width of its right of way, including the ground from which the water issues in this spring, and place thereon its tracks or any structures necessary in the operation of its road. It may therefore prevent the appellee from taking the water directly from the place it issues from the ground by depositing dirt or erecting structures thereon. The manner of using the spring, her property, is therefore interfered with by the appellant’s appropriation of the land, and to the extent of her injury she is entitled to compensation. The amount of the damages will depend upon the extent of the injury which, of course, must be made to appear by evidence. If the use to which the appellant puts this part of its right of way should destroy the spring, the appellee must be awarded compensation for the value of it. In Wheatley v. Baugh, 25 Pa. 528, Chief Justice Lewis, delivering the opinion, said (p. 533): “The owner of land on which a spring issues from the earth, has a perfect right to it against all the world, except those through whose land it comes. He has even a right to it, as against them, until it comes in conflict with the enjoyment of their own property. . . . Even a railroad corporation, armed by law with the right of eminent domain, and having power to take private property for the construction of its road, is answerable to the owner of a spring for destroying it, although its destruction be caused by excavations on the land of an adjacent proprietor.”

3. In condemnation proceedings, a railroad company in the exercise of its right of eminent domain secures not only the surface of the land but also so much of the underlying minerals as may be necessary to support the surface. The company’s entry upon the land is an appropriation of the subjacent strata of coal or other minerals so far as necessary to support the surface for any purpose to which it may be put for railroad uses: Penn Gas Coal Company v. Gas Company, 131 Pa. 522; Davis v. Gas Company, 147 Pa. 130. In the former case, a bill was filed by the plaintiff, a coal company, to restrain the defendant gas company from laying its pipes through the surface of the land, owned by another party, until the filing and approval of an adequate bond to the plaintiff company securing payment of any damages which might accrue to it. The owner of the land had granted the coal to the plaintiff company and released his right to the support of the surface, thereby enabling the company to remove all the coal without regard to the effect upon the surface.. The trial court refused the injunction, but this court reversed, and directed the court to require the gas company to file the bond. Mr. Justice Williams, delivering the opinion, said (p. 533): “The right of eminent domain cannot be abridged or defeated by the contracts between the private owners, or by the release of the owner of the surface. An entry by the state upon the surface is an entry upon the subjacent strata so far as they are necessary to support the surface for the purposes of the canal, railroad, pipe line, or other structure to be built thereon. If the corporation making the entry has no knowledge that the right of support has been released, or if it fails for any reason to tender a bond to the owner of the coal, the remedy of the owner is by bill to restrain, or by a proceeding to obtain an assessment of the damages sustained.” In that case it is distinctly ruled that both the surface and coal owner are entitled to compensation for the injury sustained by the appropriation of the right of way.

In the case in hand, the owner of the surface had, prior to' the appropriation of the land, conveyed the coal underlying the surface with sufficient mining rights to enable the grantee to remove all the coal regardless of its effect upon the surface. If any part of the coal was necessary for the support of the surface, occupied by the appellant company, the owner of the coal is entitled to compensation. When, therefore, the company entered and appropriated the land for its right of way, it was required to compensate both the owner of the surface and the owner of the coal for the damages resulting from the appropriation. The owner of each is entitled to damages to the extent of his holdings, and it is apparent that the amount of damages to which the owner of the surface is entitled will depend upon the interest she has in the land. The extensive mining rights which she granted to the purchaser of the coal might affect the interest or estate which she has in the land. Those rights belong to the owner of the coal and must be considered as a part of his property in estimating the damages done him by the company in appropriating the right of way. It therefore follows that a witness in testifying to the amount' of damages due the owner of the coal or the owner of the surface must be acquainted with the title of the party seeking to recover damages. In testifying in the action brought by the owner of the surface, he should be informed that the ownership of the coal and mining rights is in another, and that fact should be taken into consideration by the witness if the appellant's appropriation imposed any servitude on the coal. The statement of the fact will not, as appellee seems to think, confuse the witness. Counsel need not read from the deed the mining rights, the mere statement that the coal and the right to remove it all regardless of the effect upon the surface is sufficient information for the witness. He will then have the requisite knowledge of the titles to enable him to testify intelligently.

4. The fourth assignment of error is not sustained. The objection was made to the competency of the testimony offered and not to’ the competency of the witness. It was certainly competent to show the damages sustained by the appellee, and that is all there is in the question. The answer of the witness complained of in the fifth assignment of error should have been stricken out. The fact that the witness would not wish to own the farm, after the appellant’s appropriation of the right of way, was immaterial as affecting the damages. The testimony complained of in the sixth assignment of error was stricken out, and hence the assignment need not be considered.

So far as the matters complained of in the assignments are in conflict with this opinion, they are sustained and the judgment is reversed with a venire facias de novo.


text:
    White v. Western Allegheny Railroad Company, Appellant.

      Railroads — Condemnation proceedings — Witness—Expert witness — Preliminary test — Opinion as to values.

    Before a witness in railroad condemnation proceedings can be allowed to express an opinion as to land values he should be examined as to his knowledge of the land, and his disqualification to express an opinion must be passed upon by the court. The test, however, must not set the standard of qualification so high as to exclude the only available kind of testimony ordinarily obtainable in such cases.
    A witness is qualified to express an opinion as to land value in condemnation proceedings, where he testifies that he was a farmer, had known the farm in question for a period of forty years, frequently passed through it on the public highway, observed the improvements and quality of the land, knew the boundaries, had some familiarity with land value and general selling price in the neighborhood as a county commissioner and man of affairs in that section, had observed the cut made in the location of the railroad, and was familiar with the conditions before and after the entry. In such a case it is immaterial that the witness cannot recall any particular sales in the neighborhood about the time of the entry, inasmuch as no such sales may have been made.
    A judgment in favor of a landowner in condemnation proceedings will not be reversed because a speculative answer of a witness was not stricken from the record, if it appears that the answer could not possibly have done the appellant any harm as it was meaningless as bearing upon the amount of damages involved.
    Argued Oct. 13, 1908.
    Appeal, No. 38, Oct. T., 1908, by defendant, from, judgment of C. P. Lawrence Co., Dec. T., 1905, No. 34, on verdict for plaintiff in case of John S. White v. Western Allegheny Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from award of jury of view. Before William E. Porter, P. J.
    At the trial the court permitted, under objection and exception, J. A. McMillin and L. M. Jones to testify as to the market value of the land. [1, 6]
    J. A. McMillin was asked this question:
    “Q. What inconvenience, disadvantage and danger would there be in crossing this railroad at grade in the use of it for farming it as a stock farm or for any use in which a farmer usually uses a farm and for which farms are used in that section of the community?”
    Defendant’s counsel object and call for the purpose. Offered for the purpose of showing the damage to the plaintiff in the construction and the operation of the railroad through this farm.
    Objected to by defendant’s counsel as incompetent and immaterial and not being an inquiry as to the subject-matter of the issue in this case.
    The Court: He may answer the question, and an exception is sealed for the defendant.
    Question read witness:
    “A. You wouldn’t be in any danger unless a train came along and if one came along it would be apt to crush the wagon or the cattle if the railroad would have the right of the track.”
    Defendant’s counsel object to the question and answer and ask the court to withdraw it from the consideration of the jury and strike the evidence from the record for the reason, that the answer as well as the question are entirely speculative and do not go to the subject-matter of the issue.
    Verdict and judgment for plaintiff for $1,812.50. Defendant appealed.

      Errors assigned were (1, 3, 6) rulings on evidence, quoting the bill of éxceptions.

      J. Norman Martin, for appellant.
    Where a witness is called to testify as to values, his evidence at best is only secondary; but to give this kind of evidence he must be competent to give an opinion and the preliminary question of competency is for the court below, but.he must have some knowledge to make him competent in any event: Reed v. Railroad Co., 210 Pa. 211; Struthers v. Railroad Co., 174 Pa. 291; Sutton v. Railroad Co., 214 Pa. 274; Lally v. Railroad Co., 215 Pa. 436; Hope v. Railroad Co., 211 Pa. 401; Friday v. Penna. R. R. Co., 204 Pa. 405; Michael v. Pipe Line Co., 159 Pa. 99; Davis v. Penna. R. R. Co., 215 Pa. 581.

      Robert K. Aiken, for appellee.
    If a witness has some familiarity with the land and with values, his testimony must go to the jury. The extent of his knowledge affects the weight of his testimony and not his competency: Hope v. Phila. & Western R. R. Co., 211 Pa. 401; Lewis v. Springfield Water Co., 176 Pa. 237; Penna. & New York R. R., etc., Co. v. Bunnell, 81* Pa. 414; Curtin v. Railroad Co., 135 Pa. 20; Hewitt v. Railroad Co., 19 Pa. Superior Ct. 304; East Penna. R. R. Co. v. Hiester 40 Pa. 53; Port v. Railroad Co., 168 Pa. 19.
    January 4, 1909:
   Opinion by

Mr. Justice Elkin,

This case grows out of a proceeding to condemn a strip of the plaintiff’s land for railroad purposes under the right of eminent domain. The assignments of error relate to the qualification of certain witnesses to testify to market value before and after the taking. It is argued that the witnesses McMillin and Jones did not have such actual personal knowledge of the farm., its area, improvements, productive qualities, the uses for which adapted, and the general selling price of lands in the neighborhood, as to make them competent to express an opinion on market value. The rule is that the possession and sufficiency of such knowledge is a preliminary question to be passed upon by the court before the witness should be permitted-to express an opinion: Michael v. Crescent Pipe Line Co., 159 Pa. 99. The importance'of testing the qualification of a witness to express an opinion as a preliminary question, is pointed out by Brother Mestrezat in Davis v. Pennsylvania Railroad Co., 215 Pa. 581, wherein it is said: “After such testimony has gone to the jury it is impossible to eradicate it entirely from their minds by any instructions or directions by the court.” We agree with the learned counsel for appellant that it is the duty of the trial judge to carefully consider the qualification of each witness in such cases as a preliminary question before an opinion is expressed upon market value. However, the test applied must not set the standard, of qualification so high as to exclude the only available kind of testimony ordinarily obtainable in such cases. Market value of land is not capable of exact proof, and at best is a matter of opinion not generally of experts with special knowledge, but of persons familiar with values in the neighborhood. As we view the facts of' the present case, the witnesses objected to were qualified to express an opinion as to market value. McMillin was a farmer, had known the farm through which the railroad was constructed for a period of forty years, frequently passed through it on the public highway, observed the improvements and quality of the land, knew the boundaries, had some familiarity with land values and general selling price in the neighborhood as a county commissioner and man of affairs in that section, had observed the cut made in the location of the railroad and was familiar with the conditions before and after the entry. It is true the witness could not recall any particular sales in the neighborhood ab'out the time of the entry, but there is no evidence of such sales being made and there may have been none. Because sales are few and at long intervals or not at all,- it would be unreasonable and unjust to the landowner to hold that he is precluded from offering any testimony on the subject of land values before and after the taking, on the ground of there having been no particular sales in that neighborhood. The witness must have such knowledge of the subject-matter as can reasonably be expected in view of the circumstances, the frequency or infrequency of sales, the location, improvement and quality of the land, and such other things as enter into a proper estimate of market value. In other words, the rule requires the best evidence' available under the circumstances of the case. We think McMillin and Jones, as well as the other witnesses, met this requirement and were qualified to express an opinion as to the market value of the land in question: Smith v. Railroad Co., 205 Pa. 645; Hope v. Railroad Co., 211 Pa. 401; Lally v. Railroad Co., 215 Pa. 436. The answer of the witness to the question complained of in the third assignment was speculative, and upon request should have been stricken from the record, but it could not possibly have done appellant any harm because it was meaningless as bearing upon the amount of damages involved, and certainly does not constitute reversible error.

Assignments of error overruled and judgment affirmed.


author: Mr. Justice Potteb,

text:
    Slippery Rock Township School District.

      School law — Removal of directors — Inadequate school accommodations— Appeal — Certiorari—Review—Discretion—Act of June 6, 1893, P. L. 330.
    Where school directors appeal from an order removing them from office in proceedings under the Act of June 6,1893, P. L. 330, the appellate court will consider the matter only as being before it on certiorari, and will look into the record only so far as may be necessary to ascertain whether the court below exceeded its jurisdiction or its legal discretion.
    Argued Oct. 13, 1908.
    Appeal, No. 80, Oct. T., 1908, by R. Slemmons Cunningham et al., school directors of the school district of Slippery Rock township, from order of C. P. Lawrence Co., Dec. T., 1907, No. 11, removing them from office.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for appointment of inspector under Act of June 30, 1893, P. L. 330. Before William E. Porter, P. J.
    The opinion, of the Supreme Court states the case.

      Error assigned was the order of removal.

      James A. Gardner, for appellants,
    cited: York Twp. School Dist., 10 Pa. Dist. Rep. 687; Ross’s App., 179 Pa. 24; Kittanning School Dist., 179 Pa. 60; Barr’s Petition, 188 Pa. 122; Washington Twp. School Dist., 15 Pa. C. C. Rep. 509; Davis v. Girard Twp. Directors, 15 Pa. Dist. Rep. 731; West Finley Twp. School Directors, 27 Pa. C. C. Rep. 291.

      J. Norman Martin, for appellees.
    No appeal lies in this case: Renninger v. Thompson, 6 S. & R. 1; Barnes v. Com., 11 W. N. C. 375; Ruch v. Morris, 28 Pa. 245; Davenport v. Jones, 126 Pa. 271; Ross’s App., 179 Pa. 24.
    The discretion of the court below cannot be reviewed: Barr’s Petition, 188 Pa. 122; Rule on School Directors, 179 Pa. 60.
    January 4,1909:
   Opinion by

Mr. Justice Potteb,

This was a proceeding for the removal of school directors of Slippery Rock township, Lawrence county, under the provisions of the Act of June 6, 1893, P. L. 330, for failing, without valid cause, to provide suitable and adequate school accommodations for the children of the district.

Upon petition filed the court of common pleas appointed an inspector to visit the district, ‘inquire into the facts and make report to the court. The inspector reported that the directors had failed, without valid cause, to provide suitable accommodations. Thereupon the court granted a rule upon the school directors, six in number, to show cause why they should not be removed from office. After answer filed and after argument, the court made the rule absolute, as to all the directors save one. The directors who were thus removed have appealed.

The act of assembly in question, that of June 6, 1893, first came before this court for construction in Ross’s Appeal, 179 Pa. 24, where Justice Dean said (p. 30): “We are of the opinion that the intent of the act of 1893 is to confer on the courts of common pleas of this state a power by this new proceeding to ascertain the facts and determine whether the directors have exercised a sound discretion in providing suitable building accommodations for all the school children of the district.” And in Kittanning Township School Directors, 179 Pa. 60, this court said, “It will be a rare case, where the court below has such superior opportunities for wise action as in these cases, that a purely appellate court would undertake to review its decree on the facts or the inferences therefrom, even conceding our power to do so.” And in Barr’s Petition, 188 Pa. 122, a case which arose under the same act of assembly, Justice Dean said (p. 127): “The court below, on ample testimony, has found the facts warranting its decree; we would not touch it, unless there was a manifest error in its finding or a flagrant abuse of its discretion.”

The question of the right to review in this court does not seem to have been raised in the former cases, but we may suggest that the proceeding is entirely statutory, and no appeal from the judgment of the court of common pleas is given by the statute. We are at liberty therefore to consider the matter only as being before us on certiorari, and we may look into the record only so far as may be necessary to ascertain whether the court below exceeded its jurisdiction or its proper legal discretion. It matters not that we might have reached a different conclusion upon the facts, or drawn other inferences therefrom. It is sufficient to say that in no way does it appear from the record that the court below went beyond the power conferred upon it by the statute, or that it in any way abused the discretion vested in it, in the inference which it drew from the facts or the conclusions which it reached.

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