author: Mr. Justice Brown,

text:
    Rochester Borough, Appellant, v. Kennedy.

      Pleading — Practice, C. P. — Amendment—Cause of action — Ejectment ■ — Adverse possession.

    1. A plaintiff may amend bis declaration at any time during the trial as lie pleases, provided only that he does not introduce a new cause of action.
    2. A cause of action is the particular matter for which suit is brought.
    3. In ejectment the cause of action is the possession of land by one to the exclusion of another entitled to the possession of it.
    4. In an action of ejectment where a borough seeks to recover a small piece of land, which is averred to be a part of an established highway, and the defendants set up a title in fee simple under certain acts of assembly, the borough will not be permitted in rebuttal under the original pleadings to show title by adverse possession for the statutory period; but it will be permitted to amend its statement and abstract of title by adding thereto an averment of adverse possession, so as to introduce evidence of title acquired by such possession. Such an amendment does not introduce a new cause of action.

      Canals — Roads and highways — Title—Exclusive occupancy by state.

      5. Where the commonwealth enters upon land and occupies it for purposes necessarily incident to the permanent operation of a canal, a title absolute and in perpetuity is vested in the commonwealth and is exclusive in character, so that there can be no joint occupancy of the land by another with the commonwealth, so as to vest in such other any title whatever. If the land so appropriated is the bed of a highway, it is freed from the incumbrance of the highway, and the borough in which it lies has no standing to maintain an ejectment for it against the successors to the absolute title of the commonwealth.
    Argued Oct. 12, 1909.
    Appeal, No. 130, Oct. T., 1909, by plaintiff, from judgment of C. P. Butler Co., Dec. T., 1908, No. 32, on verdict for defendants in case of Rochester Borough v. Anna M. Kennedy et al.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Ejectment for land in the borough of Rochester, Beaver county. Tried by change of venue in Butler county. Before Galbreath, P. J.
    At the trial the jury returned a verdict in favor of the defendant.
    On a motion for a new trial and for judgment for plaintiff n. o. v. Galbreath, P. J., filed the following opinion:
    This is an action of ejectment brought by the borough of Rochester, plaintiff, against the defendants to recover possession of a lot of ground in size about twenty by sixty-eight feet, situate in said borough, which, it is contended on part of plaintiff, is a portion of Island lane, one of the highways of said borough. By an Act of general assembly, approved September 28, 1791, 3 Sm. L. 56, the governor of the commonwealth was empowered to direct the surveyor general to lay out or cause to be laid out into lots and out lots certain lands then belonging to the commonwealth, situate on the Ohio river and on both sides of the mouth of Beaver creek, including Fort McIntosh. This was done by Daniel Leet, whose survey of a town and out lots at the mouth of Beaver creek was confirmed by Act of assembly of March 6, 1793, 3 Sm. L. 90. By the former of said acts it was provided that “the streets, lanes and alleys of the said town and out lots shall be common highways forever.” On the out lots so surveyed and laid out on the east side of Beaver creek the town of Rochester was built. It was incorporated as a borough by Act of assembly of March 20, 1849, P. L. 283. One of the highways of said town, as laid out in the Daniel Leet survey and plan, was Island lane, situate along the east bank of Beaver creek.
    By an Act of assembly, approved March 27, 1824, P. L. 92, the governor was authorized and required to appoint a board of commissioners for the purpose of promoting the internal improvement of the state. This was the initial legislation looking toward the construction by the state of its system of canals. The scope of these improvements was enlarged from time to time by subsequent legislation. By the Act of February 25, 1826, P. L. 55, the canal commissioners were authorized to acquire the necessary land for the construction and operation of the canals authorized to be made, and in case of failure to agree with the owners, or in the event of their disability, to enter upon and condemn the lands and have the damages assessed in the manner therein provided, and it was further provided that on payment of such damages, “The state shall be seized of such lands as of an absolute estate in perpetuity or with such less quantity and duration of interest or estate in the same, or subject to such partial or temporary appropriation, use or occupation, as shall be required and described as aforesaid, as if conveyed by the owner or owners.” By the Act of April 9, 1827, P. L. 192, the mode of assessing damages in such cases was changed and the time within which the landowner could petition for the appointment of viewers to assess his damages was fixed at one year after the completion of the work. By the ninth section of the last mentioned act the canal commissioners were authorized “to make such alterations as may appear to be expedient in the route and location of any state, county or township road along which or in the immediate vicinity whereof the canal or any part thereof does or shall pass, and to lay out and open to such width as shall be necessary, so much of any of the said roads as shall be relocated, and such new route of any of the said roads shall be considered as a public highway, to be supported and kept in repair as other highways in this commonwealth are supported and kept in repair, and so much of the route of any road as may be altered shall be thereby vacated.” By the Act of March 21, 1831, P. L. 194, provision was made for the construction of a canal or slack-water navigation “from the Ohio river, at the mouth of Big Beaver creek, up that creek to the town of New Castle.”
    Under these various acts of assembly the canals of the state, including the branch extending from the Ohio river to New Castle, and subsequently to Lake Erie, were constructed. In the making of said branch the Beaver creek was slack watered and utilized for a portion of the way. This necessitated the building of locks and dams. Lock number sixteen was located on the east side of Beaver creek in the. town of Rochester. The highway known as Island lane, situate along the east bank of the same at this point, was utilized as a towing path for. the purpose of the canal. On the east side of Island lane and immediately across from said lock number sixteen, was the lock house where the boats passing through said lock obtained their proper clearance papers. That portion of Island lane lying between said lock and lock house was thus used for the purpose of passing from the lock to the lock house, as well as for a towing path, in the transportation of boats through said lock. The balance beams used in operating the gates of the lock extended for a considerable distance out into and across said lane, thus forming a barrier to its use as a public highway for the distance that they extended across it.
    This branch of the canal was completed about the year 1835, and, at the point in question, was operated and the land was occupied in the manner above pointed out as long as the canal was in operation, which was up to the year 1871. By an Act of the general assembly, approved March 7, 1843, P. L. 36, the governor of the state was authorized to incorporate the Erie Canal Company, to which, when certain conditions had been complied with, the property and franchises of the canal extending from the Ohio river to Lake Erie were to be turned over. This was done and thenceforth all the property and rights of the state in that portion of the canal vested in said corporation as fully as it had theretofore vested in the state. In the year 1871 a judgment was entered against the Erie Canal Company in the common pleas court of Beaver county, on which an execution was issued and all the property of said company in the county of Beaver was levied upon and sold by the sheriff of said county and a deed therefor, bearing date September 2, 1871, was duly made and delivered to the purchaser, A. J. Boyle. This deed purported to convey, inter alia, the lock house at lock number sixteen, Beaver division, and the lot attached thereto, containing fifty perches of land, more or less, and being in the borough of Rochester. By subsequent conveyance all that portion of the Erie canal between the mouth of Beaver river and the lower lock at New Brighton, all within said county of Beaver, with the towing path, etc., vested in the present defendants, who, claiming that the portion of the original highway known as Island lane, which had been occupied and used as a towing path, had vested in them by reason of the things hereinbefore recited, moved said lock house number sixteen, outward, so as to occupy a portion of the land lying between said lock house and lock and within the lines of what was originally Island lane and formerly used as a towing path. Thereupon the pending action was instituted on the part of Rochester borough.
    The contention of the plaintiff, under its pleadings and on the trial, was that the land in dispute, being a part of Island lane and originally dedicated to public use as a highway, the right to use it as a highway revived, according to the original grant, on the cessation of its use for canal purposes. The contention of the defendants is that the commonwealth, in taking the land for canal purposes, acquired an absolute fee therein, unvexed by any joint right in the public to use it concurrently as a highway, and that title of the same absolute and unqualified character vested in the Erie Canal Company, as the successor of the commonwealth and, by subsequent conveyance, in the defendants.
    At the trial proof was made, on part of the plaintiff, of the laying out, by legislative enactment, of the town of Beaver, with its lots, streets, lanes, alleys, and out lots, including Island lane as a public highway, and that the land now occupied by the defendants is a part of Island lane, as shown by the original draft and survey. Having shown these things, the plaintiff rested. Upon part of defendants, proof was made of the various enactments looking toward the construction of the canals of the state, the creation of the board of canal commissioners^ and their authority to condemn and occupy public roads, etc., for that purpose, the transfer of the Beaver division of the Pennsylvania canal to the Erie Canal Company, the subsequent sale of this property and the vesting of title in the defendants by virtue of diverse conveyances. The defendants also called a large number of witnesses to show the character of the use of Island lane at the point in dispute during the operation of the canal from its inception until the cessation of operation in 1881, when the property was sold by the sheriff. Having offered their proofs along these lines to sustain their title, as set up in their abstract, the defendants rested their cause. The plaintiff then called a large number of witnesses to rebut the testimony offered on part of defendants, especially as to the character of the use made of Island lane during, the operation of the canal, the tendency of plaintiff’s rebuttal evidence being to show that the state and its successor in title, the Erie Canal Company, did not take the exclusive possession of Island lane for canal purposes, and that during the time the canal was in operation there was a concurrent use of said lane by the public as a highway. The plaintiff also offered, in rebuttal, to show that after the canal had ceased to be operated, and for more than twenty-one years prior to the bringing of this action and prior to the taking of possession by the defendants, the borough of Rochester had continuous, open, adverse possession of the premises in dispute as a highway, but as the defendants had offered no testimony as to the use of the premises after the cessation of the use of the canal, the testimony offered could not be received by way of rebuttal. Plaintiff’s counsel then moved for leave to amend their abstract, so as to allege title by adverse possession for more than twenty-one years after the canal ceased to be operated. This motion, being objected to, was refused by the court, for the reason that it would introduce a new and independent cause of action, after both plaintiff and defendants had rested in chief, and would involve a trial of the case de novo on a new and distinct theory.
    The case was submitted to the jury on the theory that although the presumption was that the state, in the exercise of its sovereign authority took an absolute estate, as it could, under the legislation above adverted to, in the lands permanently occupied for canal purposes, yet it was competent for it to take a less estate therein; and that in the absence of any record of condemnation proceedings the nature of and extent of its taking were evidenced by the extent and character of its occupancy of the land in dispute; and that the presumption of an absolute estate in the land on the part of the state, and the consequent right of exclusive possession, could be overcome by proof of such use of the land as indicated that the state had taken a less than absolute estate therein; and that its possession was not exclusive, but concurrent with that of the public for highway purposes. On the case thus submitted the verdict was for the defendants.
    The reasons assigned in support of the motion for new trial and for judgment, non obstante veredicto, may be reduced to three propositions, so far as they relate to the action of the court, viz.:
    1. That the court erred in refusing plaintiff’s motion to amend, so as to let in proof, in rebuttal, of plaintiff’s claim of title by adverse possession.
    2. The court erred in instructing the jury that the state was presumed to have taken title absolute to the land in dispute, and that the burden rested on plaintiff to overcome the presumption.
    3. The court erred in refusing to instruct the jury that' the right of the public to use Island lane as a highway, according to its original dedication, revived on the cessation of its use for canal purposes.
    Taking these up in their order, it may be observed, first, that the plaintiff did not, in its statement setting forth its cause of action, nor yet in its abstract, set up any claim of title to the land by reason of adverse user. On the contrary, its whole claim of title rested on the fact of the original dedication of Island lane for highway purposes, and the contention that its use for that purpose could not be changed or permanently lost. On that theory it tried its case in chief and rested. No evidence was adduced on part of defendants which even tended to raise the question of the nature of the use of Island lane during the period intervening between the cessation of its use for canal purposes and the bringing of the pending suit. The plaintiff’s offer on rebuttal, to show continuous and adverse possession for more than twenty-one years prior to the bringing of the suit was therefore clearly not competent, as it did not tend to rebut anything whatever. The offer to amend the plaintiff’s abstract and statement so as to aver title by adverse user, even if allowed, would not have rendered competent the testimony that was otherwise clearly incompetent on rebuttal. Its only effect would have been, at that stage of the case, to introduce a new ca,use of action. Assuming that the plaintiff did have such adverse possession for more than twenty-one years, this was a fact the discovery of which did not await the development of the trial. That it introduced a new and distinct cause of action, we think is clear, when we consider that the cause of action is, in its last analysis, that upon which the plaintiff in the action bases his right of recovery. Two elements enter into every cause of action, viz.: a right in the plaintiff and the denial or infringement of that right by the defendant. If the plaintiff has a right to possession of the premises in dispute, growing out of the original dedication of Island lane, and the defendants interfered with that right, this created a cause of action, distinct in itself. If the plaintiff’s right of possession arose out of its exclusive possession for more than twenty-one years, the denial of that right would also constitute a cause of action, similar to the former, but resting on a different reason, and to be established by a different line of proof. It is not infrequently the case that several causes of action are set up in the same case, especially in ejectment. In the matter of allowing amendments, some regard must be had for orderly practice. In the present case the testimony was voluminous, requiring several days for the trial. The amendment was not asked for until both plaintiff and defendants had rested in chief after many witnesses had been examined and several days had been consumed in the trial. It was then asked for, in order to introduce, in rebuttal, evidence of adverse possession in the plaintiff, after operation of the canal had ceased, but as such testimony would not have tended to rebut anything sought to be proven by the defendants, it could not have been received under the amendment, even if allowed, and its allowance would have been a vain thing. To become effective, it would have meant the beginning of the case de novo, and its trial on a new and distinct ground, but if that might be done, then, also, after the defendant had made defense to plaintiff’s claim of adverse possession, the plaintiff might, with equal right, ask to amend his abstract by showing title to the premises by virtue of a tax sale or otherwise, and whilst, it is conceded that the courts shall be liberal in allowance of amendment in order to exact justice between the parties litigant, yet there is a limit beyond which, we think, liberality would tend to hardship and consequent injustice. If the plaintiff desired to try its case on a new or additional theory, the time having gone by for its doing so in chief, a voluntary nonsuit would have availed for that purpose and would have enabled it to institute its action anew, under such pleadings as would embrace every theory on which it might hope to recover.
    Second: Coming now to a consideration of plaintiff’s contention, that the court erred in instructing the jury that the interest acquired by the state in the land in dispute was presumed to be aii absolute estate in fee simple, and that the burden of showing that a less or qualified estate was taken, rested upon the plaintiff, it may be observed that it has been settled by a long line of decisions that the land acquired by the state for permanent use in the construction and opération of its canals, under the several acts of assembly authorizing it thereto, was an absolute estate in perpetuity: Com. v. McAllister, 2 Watts, 190; Haldeman v. Railroad Co., 50 Pa. 425;' Craig v. Mayor, etc., of Allegheny, 53 Pa. 477; Robinson v. West Penna. R. R. Co., 72 Pa. 316; Penna. & N. Y.. Canal & R. R. Co. v. Billing's, 94 Pa. 40. ■
    The act of February 25, 1826, above referred to, in its eighth section provides: “That it shall., and may be lawful for the said board, or a majority of them, to agree with the owner or owners of any land, through which the said canal is intended to pass, for the purchase, use and occupation thereof, on behalf of the state, and in case of disagreement, or in case the owner or owners thereof shall be feme covert, under age, non compos, out of the state or county,” to make application to a justice of the peace, who shall issue his warrant to the sheriff of the county to summon a jury of eighteen inhabitants of the county to assess the damages that might accrue to the landowner. It is also provided that “upon every such valuation the jury is hereby directed to describe and ascertain the bounds of the land by them valued and the quality and duration of the interest and estate in the same, required by the said board for the use of the state, and their valuation shall be conclusive on all persons and shall be paid for by the said board to the owner or owners of the land or his, her or their legal representatives, and on payment thereof the state shall be seized of such lands as of an absolute estate in perpetuity, or with such less quantity and duration of interest or estate in the same, or subject to such partial or temporary appropriation, use or occupation as shall be required and described, as aforesaid, as if conveyed by the owner or owners.”
    The proceeding thus provided for was modified by the Act of April 9, 1827, P. L. 192, relating to the further extension of the Pennsylvania canal, wherein it is enacted, in sec. 8 of said act: “That if any person shall consider himself aggrieved by reason of the canal passing through the lands of which he is owner, or by interfering in any manner with his rights of property, he may, at the completion of the work, thereupon, or within one year thereafter, petition the court of quarter sessions of the county in which the damage has been committed and the said court shall appoint five reputable citizens” to view the premises and report such damage, if any, as they, or any three of them, shall think the owner has sustained by reason of said canal.
    The differences in these two modes of procedure to which we would call attention are these: The former was evidently intended to precede the occupancy of the land, as it relates to “any land through which the said canal is intended to pass.” It also required the boundaries of the land to be taken and the quality and duration of the estate therein to be ascertained and reported. The proceeding provided by the latter act, however, could not be instituted until the completion of the work or within one year thereafter, and hence not until after the state had entered upon and constructed the canal through the land. Instead of determining in advance .the boundaries of the land to be taken and the duration and quality of the estate therein, it contemplated an assessment of damages for the lands already actually taken and occupied, the boundaries of which and the nature of the estate therein and occupancy thereof would be then best evidenced by what appeared on the ground. This difference becomes important in this, that under the act of 1827, the state could enter upon the land without any prior proceeding of any sort, and its title, we may assume, was complete, even if no agreement were thereafter entered into with the owner, or if the owner failed to institute his proceeding within the year after the work was completed or at all. The title of the state grew out of the fact of its entry upon the land without more on its part, and without any proceeding instituted for the assessment of damages, and without t any record of its entry or of the extent of its taking. These differences are adverted to and commented upon in Com. v. McAllister, 2 Watts, 190, as follows: “By the Act of April 9, 1827, the viewers are not to be called upon to view the ground and make report until the work of the canal has been completed through the land of the applicant. The canal being finished through the land, it is obvious then that the state has‘no use, after that, for any part of the land except that upon which the canal has been located and made, which is necessarily wanted in perpetuity. The use to which it has been appropriated by the state is a sufficient indication of the quality and duration of interest and estate that was required by her in it, and the applicant has clearly a right to claim compensation for the fee simple in it- — -to set it forth by metes and bounds and the quality and duration of interest and estate which the canal commissioners or state had the use of in making the canal would be perfectly useless.” See also Haldeman v. Penna. R. R. Co., 50 Pa. 425.
    As the Beaver branch of the Pennsylvania canal was not authorized until by Act of assembly of March 21,1831, P. L. 194, it is evident that the entry upon and appropriation of the lands in question were under the provision of the said act of 1827, and that the very fact of such entry and appropriation of the land in question for canal purposes, without more, vested title in the state, and that the character of its title was determined by the nature of its occupancy and use. When such occupancy was of a temporary character, connected only with the construction of said canal, it passed away when the work of construction was completed, but when it was for a permanent purpose, necessarily connected with the maintenance and operation of the canal, the estate acquired for such purposes was necessarily an absolute estate in perpetuity. It would seem necessarily to result from this that the mere entry of the state upon the land in question and the use of it for a purpose essentially and permanently connected with the operation of the canal gave rise to a presumption of an absolute and exclusive title in the state in perpetuity, and all the cases seem to rest upon this presumption not only as to the character of the title, but also as to the extent of the land taken.
    In Pennsylvania Canal Company v. Harris, 101 Pa. 80, the court says: “The purpose for which a canal is designed and its practical enjoyment requires npt only the ground covered by water and banks of sufficient strength to confine the water in place, but also a towing path on one side on which horses may travel, and a berme bank on the other side against which boats may rest and to which they may be tied. The presumption is that the state took possession of land of a width necessary for the reasonable enjoyment of all rights appertaining to a canal. This presumption stands until removed by evidence of actual possession taken of less ground.”
    In the case of Wyoming Coal & Transportation Co. v. Price, 81 Pa. 156, the court, in its consideration of the question of the character of the title acquired by the ■ state in the construction of its canals, says: “The case of Union Canal Company v. Young, 1 Wharton, 410, also shows that when land is procured for the building of a canal thereon the presumption is that the right of soil was acquired and not a mere easement thereon.” In the case of Craig v. The Mayor of Allegheny, 53 Pa. 477, Mr. Justice Agnew, writing the opinion of the court, says: “In Haldeman v. Pennsylvania Central R. R. Company, 14 Wright, 425, it was determined that the land taken under the act of 1826, providing for the permanent use of the canal, is held by the Commonwealth absolutely and in perpetuity; the Commonwealth being a corporation of the highest and most indestructible kind, her- estate in the land is necessarily a fee simple.” And again, in the same case, it is said that “in establishing a great and permanent work, to endure forever, as it was then supposed this canal would, the Legislature contemplated an ’ ownership of the canal unembarrassed by private rights, such as a mere easement for passage would leave in the owner. To hold her canal by interrupted links of absolute ownership would be inconvenient and uncertain.” In the case of Robinson v. West Penna. R. R. Co., 72 Pa. 316, where land excepted from a grant to the commonwealth for canal purposes was afterwards entered upon and appropriated by the state for the purpose of constructing a basin, the court says: “There can be no doubt of the right of the commonwealth under the Acts of February 25, 1826, P. L. 55, and April 9, 1827, P. L. 192, to take the land for the purpose of constructing the basin; nor of the owner’s right to have the damages which he has sustained by reason thereof assessed under the provision of the latter Act, but the right of the Commonwealth to the land so taken was an absolute estate in perpetuity — and could not be defeated or impaired by the owner’s neglect or refusal to make application for the assessment of his damages within the time limited by the Act.”
    If, then, the mere entry of the state upon land and its occupancy for purposes necessarily incident to the permanent operation of the canal invested the state with a title absolute and in perpetuity, it is a necessary deduction and hence to be presumed that when such entry and occupancy appear as in the present case, the title is of that high character, and is absolute, then also exclusive in the character of the right of possession which follows the estate. Otherwise we would have the anomaly of the state which is a corporation of sovereign capacity and authority, subjected to a joint occupancy, under a claim of right, with others, in land in which it has been invested with an absolute estate.
    On the trial of the case the jury was instructed that the presumption is that whatever land the state occupied in the operation of the canal it took an absolute estate therein in perpetuity unless the testimony indicated that a less than absolute estate was taken, and that the presumption in favor of an absolute and exclusive taking may be overcome by testimony showing that the state did take a less than an absolute and unqualified estate in the land in controversy. The submission of the case in this form was precautionary. On further examination we are persuaded that the theory upon which the case was submitted cannot be sustained, but the fallacy of that theory was not prejudicial to the plaintiff.
    In the case of Pennsylvania R. R. Co. v. Freeport Borough, 138 Pa. 91, a case very similar in principle to the one at bar, it appeared that an alley of the borough, extending along the east side of the state canal, had been used as a towing path during the time the canal was in operation. Houses and other erections were constructed on the lots abutting said alley on the side opposite the canal. The alley was used as a means of ingress and egress to and from these structures. The canal property subsequently vested in said railroad company, which located its original tracks on and along the land occupied by the basin of the canal. Through time it became necessary to lay down an additional track along the east side of said original track on the land which constituted the said alley. The borough authorities, claiming the alley as a highway of the borough, sought to restrain the railroad company by injunction. The court below, in its opinion refusing a preliminary injunction, the refusal of which was affirmed by the Supreme Court, for the reasons given in said opinion, uses this language concerning the use of the alley by the public during the time it was used as a towing path: “This use of the towing path was certainly acquiesced in by the canal company and no difference how long such use had continued or how great it may have been, no rights of absolute user could have accrued, either to the public or to the owners or occupiers of the lots, the property to the canal and its appurtenances being vested in the commonwealth. . . . Whether or not there had been a previous condemnation for the state, it does not appear. The presumption is that there was.” And again the court says: “Now, whilst the canal was in operation, the necessities for the alley were in part supplied by the consentable use and enjoyment of the towing path between those streets, but this enjoyment was only permissive.”
    Applying the reasoning in this case to the one in hand, it means that the concurrent use of Island lane as a highway, had such been found, must be viewed as permissive, and not of right. We think, therefore, that the instruction given to the jury, that an absolute and exclusive right in the state must be presumed, was not erroneous. Any concurrent use of the towing path by others during the time the canal was in operation was permissive and not a matter of right. ■
    The further contention, that the court erred in refusing to instruct the jury that the right of the public to use Island lane as a highway according to its original dedications revived on the cessation of its use for canal purposes, remains to be considered. In passing upon the question thus raised, it would seem to be a safe postulate that the commonwealth, in the exercise of its plenary power over the highways of the state, may, either immediately, by legislative enactment, or mediately, through agencies exercising delegated authority, both create and destroy. If this be correct, it would seem necessarily to result that what it can create and may destroy, may be by it diverted from its original use to some other. It can scarcely be thought that the commonwealth, by reason of its dedication of Island lane as a highway, thereby reduced itself to a condition of impotence to thereafter deal with it in such a way as to change or abrogate that use. Island lane did not become inviolate in character by reason of having been originally dedicated by the state to public use forever. This very question was raised in respect to another highway in the same plan of lots, in the case of Com. v. Beaver Valley R. R. Co., 222 Pa. 220, wherein the court below, in disposing of that question, says: “But it is suggested that Fifth street is peculiar in its relation to the Commonwealth, in view of the fact that it was dedicated as a 'common highway’ under and in pursuance of the act of 1791, supra. We fail to see how this fact can in any wise interfere with the operation of the admitted general principle of law that the sovereignty of public roads remains in the Commonwealth; the fact that the Commonwealth has dedicated the street in question to public use does not lessen its control over it or prevent it from exercising the same sovereignty it admittedly would have if the street had been dedicated by some one else; we can see no force in this suggestion.” Whilst, in the case of highways dedicated to public use as a part of a plat of lots which have become the property of private owners who have purchased with reference thereto, the highways so appearing cannot be closed up against their consent, for the reason that the right is wholly distinct from the right to .have the public character of such ways maintained. As to that, the public character of such highways may be relinquished at any time by proper proceedings instituted and carried on through the agencies to which authority in such cases has been delegated. In respect to a change in their use and ownership, public highways, created by .dedication or arising by prescription, or springing either mediately or immediately from legislative enactment, all of which-are artificial, both in their creation and location, are different, as we take it, from streams or .other bodies of water, which are navigable in fact, and are destined by nature to be highways, according to their kind. ■ The former, being artificial, may be changed or vacated and returned to private use, whilst the latter being fixed and immovable, are held in trust for all the people, and neither the waters nor the lands covered thereby can become, the subject of private ownership. Moreover, in the case of navigable waters so held in trust, no individual has that specific interest therein, nor in the land covered thereby which could become the basis of a claim for damages, were it sought to change the use thereof through the exercise of the right of eminent domain. Whilst in the case of Island lane, every owner of a lot which was a part of 'and purchased with reference to the plot or plan of lots of which it was a part, had such an interest therein, we think, as would have formed a basis for damages when said lane was taken for canal purposes.
    These observations are made by reason of the suggestion advanced by plaintiff’s counsel, at the trial that if Island lane could become the subject of private ownership, by virtue of the entry of the state upon it for canal purposes and the subsequent sale thereof as a part of the property of the Erie Canal Company, then also, the land covered by the waters of Beaver creek would be reduced to private ownership, inasmuch as that stream was also utilized for canal purposes.

      If, then, the commonwealth did not, by reason of the dedication of Island lane to be a highway forever, thereby divert itself of its authority to thereafter deal with it as with any other highway of the state, it would seem to follow that in the exercise of that authority it could retake and appropriate it for another use, as it did when it entered upon it for canal purposes, thereby acquiring an absolute estate therein.
    The contention that the public right to use Island lane as a highway revived after the cessation of its use for canal purposes is wholly inconsistent with the fact of an absolute estate therein which was secured by the commonwealth by virtue of its entry thereon for canal purposes. The effect of such entry was to wholly destroy or absorb any and every claim thereto or therein. The estate acquired by the commonwealth being absolute and in perpetuity, no outstanding right or estate could be in abeyance awaiting its termination. In the very nature of the case it was otherwise, and the state being the absolute owner of the fee could transfer its title to another, as it did when its ownership of the canal was transferred to the Erie Canal Company, and having become the property of said company, it became subject to be taken in execution and sale as any other property, and when sold became the property of the owner, to be turned into such lawful use as he might desire to make of it.
    For the reasons herein given the rule for new trial is discharged and motion for judgment, non obstante veredicto, is refused.
    Plaintiff appealed.

      Errors assigned were (1) refusal of amendment; (2) refusal of binding instructions for plaintiff; (13) refusal of motion for judgment for plaintiff non obstante veredicto.

      Wm. A. McConnell, with him George A. Baldwin and S. F. & A. L. Bowser, for appellant.
    It will be admitted that the allowance of an amendment is a matter of right and not of discretion. Also that any amendment may be made at any stage of the proceedings, so long as the cause of action remains substantially the same: Smith v. Smith, 5 Pa. 254. Also that the cause of action "is the particular matter for which the suit is brought”: Erie City Iron Works v. Barber, 118 Pa. 6; Meade v. Clarke, 159 Pa. 159.
    As to the instruction to the jury, that the interest acquired by the state in. the land in dispute, was presumed to be an absolute estate in fee simple, and that the burden of showing that a less estate was taken, rested on the plaintiff, we think the court erred:
    (a) Because there was no evidence of an actual taking by the state.
    (b) Because there was no actual canal at this point, only a slack-water navigation of the Beaver creek.
    (c) Because the land in question, at the time of the establishment of the slack-water navigation at this point was a public highway and there was no necessity for an absolute taking by the state: Penna. R. R. Co.’s App., 115 Pa. 514; Monongahela Navigation Co. v. Coons, 6 W. & S. 101; Susquehanna Canal Co. v. Wright, 9 W. & S. 9; Cook v. Burlington, 30 Iowa, 94.
    The right of the public to use Island lane as a highway according to its original dedication, revived on the cessation of its use for canal purposes: Waterworks Co. of Indianapolis v. Burkhart, 41 Ind. 364; Haldeman v. R. R. Co., 50 Pa. 425; Nelson v. Fleming, 56 Ind. 310; Cromie v. Wabash & Erie Canal, 71 Ind. 208; Frank v. R. R. Co., 111 Ind. 132 (12 N. E. Repr. 105); Logansport v. Shirk, 88 Ind. 563; Fort Wayne v. Coombs, 107 Ind. 75 (7 N. E. Repr. 743); Lehigh Valley R. R. v. Orange Water Co., 42 N. J. Eq. 205 (7 Atl. Repr. 659); Jersey City v. Morris Canal & Banking Co., 12 N. J. Eq. 547.

      T. C. Campbell, with him Hice, Morrison, Reader & May, for appellee.
    The amendment was properly refused: Hartman v. Keystone Ins. Co., 21 Pa. 466; Wilhelm’s App., 79 Pa. 120; Royse v. May, 93 Pa. 454; Noonan v. Pardoe, 200 Pa. 474; Duncan v. McCullough, 4 S. & R. 480; Frederick v. Gray, 10 S. & R. 182; Insurance Co. v. Bair, 87 Pa. 124; Ulysses Elgin Butter Co. v. Ins. Co., 20 Pa. Superior Ct. 384; Lauer v. Yetzer, 3 Pa. Superior Ct. 461.
    October 17, 1910:
    The borough of Rochester, as such, has no right or title whatever. It has no property in the locus in quo, but as a representative of the public, under the decisions in Pennsylvania and other states, it has the right to maintain this action of ejectment, because the possession of the locus in quo is necessarily involved in the right which it seeks to maintain: O’Neil v. McKeesport, 201 Pa. 386.
    In the state of Pennsylvania the right of highway resides in the commonwealth, and there alone. The right can never be exercised by any other person, natural or artificial, unless there be a delegation of power from the state to such natural or artificial person: In re Phila. & Trenton R. R. Co., 25 Whart. 43; Com. v. R. R. Co., 27 Pa. 339; Cleveland, etc., R. R. Co. v. Speer, 56 Pa. 325; McGee’s App., 114 Pa. 470; Baird v. Rice, 63 Pa. 489.
    The commonwealth has destroyed the highway asserted by the plaintiff to exist at and upon the locus in quo: Williamsport v. R. R. Co., 8 Pa. C. C. Rep. 350; Penna. R. R. Co. v. Freeport Boro., 138 Pa. 91.
   Opinion by

Mr. Justice Brown,

The second section of the Act of May 8, 1901, P. L. 142, relative to verdicts and judgments in actions of ejectment and regulating procedure therein, provides that “in all actions of ejectment hereafter to be brought, the plaintiff shall file a declaration, which shall consist of a concise statement of his cause of action, with an abstract of the title under which he claims the land in dispute, and in addition to the plea of 'not guilty,’ now required by law, the defendant shall file an answer in the natúre of a special plea, in which he shall set forth his grounds of defense, with an abstract of the title by which he claims; and no action of ejectment shall be considered at issue until the plaintiff’s statement and the defendant’s plea and answer shall be filed, nor shall any evidence be received on the trial of said action of any matter not appearing in the pleadings, subject to the power of amendment.” This ejectment was instituted by the borough1 of Rochester to recover a small piece of land which it alleges is part of Island Lane, one of its highways. The averment in the statement upon which it went to trial is that it claims title to the land as a part of- Island Lane, one of its public highways, under and by virtue of several acts of assembly, as set forth in its abstract of title. Its whole claim of title, as set forth in its statement, rests on an alleged original dedication of Island lane for highway purposes. The answer of the defendants denies that the land described in the statement constitutes any part of the said highway, or of any other in the said borough, and they claim title to it by virtue of various acts of assembly set forth in their abstract. On the trial the plaintiff endeavored to sustain its title as set forth in its statement and abstract, and, having rested, the defendants proceeded to show a title in fee simple in themselves under the acts of assembly referred to in their abstract. The borough in rebuttal then offered to show title acquired by continuous, open and adverse possession for more than twenty-one years prior to the institution of the suit. This offer was disallowed for the reason that it would not rebut anything that had been shown by the defendants and could not be received as evidence because it related to a matter not appearing in the pleadings. This ruling' was- correct. A motion- was subsequently made by the plaintiff to amend its statement and abstract of title by adding thereto an averment that the lands in suit had been, for more than - twenty-one years prior to the institution of the same, and.prior to the time that defendants took possession of it, thrown open to the public and had been continuously, openly and adversely used and occupied for all ordinary public purposes. The amendment was refused, and the first question raised on this appeal is as to the right of the plaintiff to make it.

A plaintiff may amend his declaration at any time during the trial as he pleases, provided only that he does not introduce a new cause of action: Hartman v. Keystone Insurance Co., 21 Pa. 466; Root v. O’Neil, 24 Pa. 326; Knapp v. Hartung, 73 Pa. 290; Erie City Iron Works v. Barber, 118 Pa. 6. The amendment which the plaintiff below asked leave to make was refused because, in the opinion of the learned trial judge, it would have introduced a new and independent cause of action. A cause of action is the particular matter for which suit is brought: Erie City Iron Works v. Barber, supra. In ejectment the cause of action is the possession of land by one to the exclusion' of another entitled to the possession of it. In the case at bar the particular matter for which the plaintiff sued was the possession of land particularly described in the original statement, and by its amendment it did not seek to change the purpose of its suit. If the amendment had been allowed, the same question — the right of the plaintiff to the possession of the land described in the original statement — would have remained for the jury’s determination. The plaintiff’s cause of action, as laid in its priecipe and statement, was the defendants’ possession of its property particularly described and, under the amendment, there would have been the same complaint. The proof upon which the plaintiff would have had to rely to support its title and right of possession would have been different under the amendment; but that was all. It would still have stood upon the same cause of action— the defendants’ possession of its land. This distinction was evidently overlooked, and the refusal to allow the amendment improperly followed. As it should have been allowed on the usual terms, the first assignment is sustained.

The other questions raised by the remaining assignments were all correctly disposed of in the learned and exhaustive opinion discharging the rule for a new trial and overruling the motion for judgment for the defendants n. o. v.

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

license: Public Domain

text:
    Kuebler v. Haines, Appellant.

      Receivers — Suits by — Defenses—Set-off.
    1. In an action by a receiver of a corporation to recover the price of goods delivered, before the receiver was appointed, in part performance of a contract of sale made by the corporation with the defendant, the defendant may set up a counterclaim for damages alleged to have been sustained by reason of the failure of the corporation to furnish him the balance of the goods contracted for.
    2. In such a case no certificate can be returned in favor of the defendant as the basis of a'judgment against the receiver; but if he can succeed in proving damages equal to the amount of the claim for which he is sued, he will be entitled to a general verdict in his favor, and if the jury shall find that his damages exceed the claim made against him, the judgment on the verdict will still be only for the- defendant, leaving him his right to present as a claim against the corporation, on the distribution of the proceeds of its assets, the sum found to be due him from it.
    3. In an action by a receiver of a corporation for goods sold and delivered by the corporation before the receiver was appointed, the defendant may offer proof of damages he had sustained by failure of the corporation to deliver other goods to him, although he has made no demand for the delivery of such goods before the receiver was appointed, if it appears that before the appointment of the receiver, he wrote to the corporation inquiring about the time of delivery, and had received a letter stating when the goods would be delivered.' Under such circumstances the defendant had a right to rely on the letter, and he was under no duty to make any formal demand for delivery.
    Argued March 8, 1910.
    Appeal, No. 339, Jan. T., 1909, by defendant, from judgment of C. P. Northampton Co., Dec. T., 1907, No. 7, on verdict for plaintiff in case of W. J. Kuebler, Receiver of Sterlingworth Railway-Supply Company, v. Harry B. Haines, defendant, and Pennsylvania Brake-Beam Company, garnishee.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Foreign attachment on assumpsit for goods sold and delivered. Before Scott, P. J.
    At the trial the court refused under objection and exception to permit the defendant to offer proof of damage sustained by him by reason of the failure of the Sterling-worth Railway Supply Company to deliver to him (balance of) goods for which he had contracted. [1, 2]
    The court gave binding instructions to find for the plaintiff for the full amount of the claim.
    Verdict and judgment for plaintiff for $2,920.48. Defendant appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions, and (3) above instructions.

      Edward J. Fox, with him James W. Fox, for appellant.
    No demand was necessary under the circumstances: Fessler v. Love & Powell, 43 Pa. 313; Barr v. Myers, 3 W. & S. 295.
    The defendant was entitled to set-off: Central Appalachian Co. v. Buchanan, 90 Fed. Repr. 454; Scott v. Armstrong, 146 U. S. 499 (13 Sup. Ct. Repr. 148); Farmers’ Deposit Nat. Bank v. Penn Bank, 123 Pa. 283; Meeder v. Goehring, 23 Pa. Superior Ct. 457; Barclay v. Edlis Barber Supply Co., 39 Pa. Superior Ct. 482; Halfpenny v. Bell, 82 Pa. 128; Lierz v. Morris, 19 Pa. Superior Ct. 73; North German Lloyd Steamship Co. v. Wood, 18 Pa Superior Ct. 488; Wanamaker v. Quinn, 27 Pa. Superior Ct. 288.

      F. W. Edgar, for appellee.
    Ordinarily when the debt or demand sought to be set off against the receiver of a corporation arises out of some transaction or right other than that sued upon, it is not to be allowed as a set-off: Singerly v. Fox, 75 Pa. 112.
    October 17, 1910:
   Opinion by

Mr. Justice Brown,

On September 22, 1906, H. B. Haines, the appellant, telegraphed the Sterlingworth Railway Supply Company that he would contract with it, at a price stated, for 1,200 gross tons of rolled steel castings — 200 tons to be delivered promptly, with the privilege of 500 additional tons for future delivery. On the 25th of the same month the president of the company wrote him that his proposition had been accepted and asked that specifications be promptly sent. These were sent to the company on October 1, and on the 5th their receipt was acknowledged in a letter in which the company stated that it had accepted the entire contract, as follows: "200 gross tons ovals, prompt delivery; 1,000 gross tons various rolled shapes: option of 500 gross tons additional for future delivery.” In reply to a letter written by the appellant on October 12, asking about the delivery of the 1,000 tons, the company replied that they would be delivered during the months of November, December and January, and that the option for the additional 500 tons could be exercised up to February 1, 1907. Of the 1,200 tons which the company contracted to furnish and deliver to the appellant he received but 430 up to February 12, 1907, when, on a bill alleging irreconcilable differences among the directors and executive officers of the company in the management and administration of its affairs, the appellee was appointed receiver. At the time of his appointment no question was raised as to the solvency of the corporation, nor did any such question - arise until fifteen months afterwards, when it was adjudged a bankrupt and F. W. Coolbaugh, its former president, was appointed receiver by the United States district court. In November, 1907, this proceeding was instituted by W. J. Kuebler, the receiver appointed by the court below, to recover the balance alleged to be due for the 470 tons of castings which had been delivered to the appellant. In his answer or affidavit of defense he set up a counterclaim for damages which he alleges he sustained by reason of the failure of the company to furnish him the castings in accordance with the terms of its contract with him, and on the trial he made an offer to prove them, but the offer was disallowed on the ground that, in this action by the receiver, he could not set them off, and the narrow question raised on this appeal is whether he ought to be allowed to do so.

One of the reasons given by the learned trial judge for declining to allow the appellant to offer any proof of the damages he had sustained by the failure of the Sterling-worth Railway Supply Company to perform its contract with him was that he had made no demand for the delivery of the castings before the receiver was appointed. In the company’s letter of October 5, 1906, to the appellant, he was formally notified that his contract had been entered upon its books and that the castings were to be delivered at the contract price on the cars at the company’s works in Easton. Replying to this a week later, he asked about the time of delivery, as he wished this matter to be understood between them. In answer to this the president of the company wrote that the 1,000 tons would be delivered during the months of November, December and January. Upon this answer, made at his request to know when the goods were to be delivered, the appellant had a right to rely, and he was under no duty, under the circumstances, to make any formal demand for delivery. The company’s contract relieved him from making it: Fessler v. Love & Powell, 43 Pa. 313. But, conceding that the duty was upon him to make demand for delivery in accordance with the' written promise to him, the jury could well have found that a demand had been made, for in December, 1906, after having been embarrassed by the failure of the company to deliver, he sent a representative to its president to request delivery, and the promise of that officer was that the material would be delivered “right away.” This promise was unfulfilled.

, The court below was, however, apparently of' opinion that, even if a demand for the delivery of the goods had been made and refused before the appointment of the receiver, the appellant could not, in this action by that officer, set off his damages resulting from the failure of the company to perform its contract with him, and Singerly v. Fox, 75 Pa. 112, was cited as an authority for overruling the defendant’s offer. That case bears no analogy to the one before us. There the receiver of a firm made sale of its goods which had come into his possession. The contract upon which he brought his suit was between him and one who had purchased some of the goods. He was not attempting to enforce any claim that the partnership had against the purchaser, and the latter was, of course, not permitted to set off against what he had promised to pay to the receiver for goods purchased from him as the officer of the court a claim for rent which he held against the firm at the time of the appointment of the receiver. The claim of the receiver was against the defendant on a contract between them alone, and the defendant’s offer was to set off a claim on a contract between him and the partnership. A very different situation, is here presented. This receiver seeks to recover, not on a claim arising on a contract with him, but on one which arose from a contract between the corporation and the appellant for goods sold and delivered to him before the receiver was appointed. The contract upon which the receiver sues is the one upon which the defendant below relies for his set-off. It was not made with the receiver, but with the corporation before he was appointed, and he is bound to respect it as fully as the company would be if he had not been appointed. He acquired no greater rights under it than the corporation itself possessed, and the chose in action which passed to him is enforcible by him only as it could have been enforced by the corporation at the time of his appointment. He took it subject to the defendant’s equitable right of set-off which existed at the time of his appointment as receiver: Alderson on Receivers, sec. 187; Farmers’ Deposit National Bank v. Penn Bank, 123 Pa. 283; Barclay v. Edlis Barber Supply Co., 39 Pa. Superior Ct. 482.

Another reason apparently in the mind of the court in overruling the offer of the defendant to set off his damages was that, if he were permitted to do so, there might be a certificate in his favor against the receiver, with whom he had no contract and against whom he had no claim. It is undoubtedly true that against the plaintiff as receiver the defendant has no claim, and no certificate could be returned in his favor as the basis of a judgment against the receiver; but if he can succeed in proving damages equal to the amount of the claim for which he is sued, he will be entitled to a general verdict in his favor, and, if the jury should find that his damages exceed the claim made against him, the judgment on the verdict would still be only for the defendant, leaving him his right to present as a claim against the corporation, on the distribution of the proceeds of its assets, the sum found to be due him from it. That opportunity may be given to him to prove his damages, if he has sustained any, so much of the first assignment of error as complains of the court’s ruling, that in this proceeding he cannot set them off against plaintiff’s claim, is sustained, and the judgment is reversed with a venire facias de novo.


text:
    Brandmeier v. Pond Creek Coal Company, Appellant.

      Actions — Assumpsit ■ — ■ Trespass — Mesne profits — Damages—Ejectment.

    1. A plaintiff in ejectment who recovers a judgment against the defendant with whom he has no contractual relation, and ousts him from the premises, cannot maintain an action of assumpsit to recover from the defendant damages and mesne profits for the wrongful occupation of the land. His remedy is by trespass añd not by assumpsit.
    2. In such a case a trial cannot be deemed to have been had with the defendant’s consent, where the affidavit of defense raises in limine an objection to the form of action, and the first offer of the plaintiff’s, which was the record of the ejectment suit with the verdict and judgment thereon, followed by a habere facias, was promptly objected to as not being relevant to the issue joined under the pleadings.
    Argued April 12, 1910.
    Appeal, No. 90, Jan. T., 1910, ■by defendant, from judgment of C. P. Luzerne Co., June T., 1904, No. 127, on verdict for plaintiffs in case of Frederick Brandmeier and Mary Mills v. Pond Creek Coal Company.
    Before Fell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    . Assumpsit for use and occupation of coal land. Before Fuller, J.
    At the trial plaintiffs offered in evidence the record of the ejectment suit of the plaintiffs against the defendant, with the verdict and judgment thereon, followed by the habere facias for the possession of the land for the use and occupancy of which and the use thereof, suit in this case is now pending, for the purpose of showing that the judgment was in favor of the plaintiffs.
    Defendant objected to the evidence as being immaterial and irrelevant to this issue.
    Objection was overruled, the evidence admitted, exception noted and bill sealed for defendant. [6]
    Defendant presented this point:
    1. The plaintiffs have -declared in assumpsit for the use and occupation of land by the lessee of two of the four tenants in common, and for mining coal thereon, and having failed to show a contractual relation between plaintiffs and defendant, either by an express promise or such facts as would imply a promise by defendant to pay plaintiffs for such use and occupation, and for such coal mined, are not entitled to recover. Answer: I refuse all of the points presented by defendant. [1]
    Verdict and judgment for plaintiffs for $13,471.64. Defendant appealed.
    Fullee, J., filed the following opinion:
    On motion for a new trial and for judgment non obstante veredicto the defendant now urges:
    1. That the action cannot be maintained in its present form of assumpsit.
    The prsecipe, the writ, and the statement, all designate the action as one of assumpsit, although the claim set forth in the statement and urged upon the trial was one for damages suffered by ouster of plaintiffs from the common property, and not arising from contract express or implied.
    We cannot pronounce a panegyric upon the skill displayed in the pleadings, nor are we asked to do so, but that is a lost art and if a fair trial has been had upon the merits, we should dislike to upset the whole proceeding on the technical distinction between trespass and assumpsit.
    The logic of defendant’s contention is that if the cause of action be regarded as assumpsit for use and occupation, it fails for want of a contract, and if it be regarded as trespass for mesne profits, it fails for disregard of the form. But in National Oil Refining Co. v. Bush, 88 Pa. 335, it was said that an action for use and occupation “is not necessarily founded upon a specific contract, written or oral, but upon the use of the premises. The occupant may be in fact a trespasser, but the owner of the tenement may waive the trespass and recover in assumpsit and it does not lie with the tort feasor to defeat him by interposing his own wrong.”
    This case was not mentioned in Reilly v. Crown Petroleum Co., 213 Pa. 595, where the plaintiff after recovery in ejectment brought an action of assumpsit in which the statement showed a liability in trespass for mesne profits, and a demurrer to the statement was upon that ground sustained; but the last-cited case in turn was not mentioned in Sipe v. Penna. Railroad. Co., 219 Pa. 210, in which it was held that a demurrer on that ground should not be sustained.
    No doubt the apparent inconsistency may be reconciled, but without undertaking the task we will simply hold that after plea in bar, without demurrer, the defect is cured against attack on objection to evidence, motion for nonsuit, or request for binding instructions.
    In either form of action the essence of the claim when defendant is in actual occupancy, is the use of the property measured by rental value, and the whole sum and substance of' the situation as here presented on pleadings and proof is that the plaintiffs have brought an action of assumpsit to recover their proportionate share of the rental value during the period of exclusive occupancy by the defendant.
    The defendant also invokes the Act of April 25, 1850, P. L. 573, as affording an exclusive remedy between tenants in common, barring both trespass and assumpsit, but that act in terms applies to an accounting for coal, iron ore, or other minerals taken by said tenants respectively, while the plaintiffs in this case do not seek any such accounting.
    We hold, therefore, that the action of trespass would have been proper, but that no advantage can be taken of the technical error committed in designating the action assumpsit, and that the defendant’s contention on this point must be denied.

      Errors assigned amongst others were (1) above instruction, quoting it, and (6) rulings on evidence, quoting the bill of exceptions.
    October 17, 1910:

      John G. Johnson and J. Q. Creveling, with them F. W. Wheaton, for appellant.
    Assumpsit cannot be maintained unless there is an express contract or the facts are such that the law will imply a contract: Enterprise Oil & Gas Co. v. Transit Co., 172 Pa. 421; Filbert v. Hoff, 42 Pa. 97.

      Edmund G. Butler, with him John T. Lenahan, for appellees.
   Opinion by

Mr. Justice Brown,

These appellees recovered a judgment against the appellant in an action of ejectment: Brandmeier v. Pond Creek Coal Co., 219 Pa. 19; and this action in assumpsit was instituted for the recovery of damages resulting from their ouster from the property. Their claim, as set forth in their statement, does not arise from any contract with the defendant, express or implied, but the learned trial judge, in his opinion directing judgment to be entered on the verdict in favor of the plaintiffs, held that inasmuch as skill in pleadings “is a lost art,” and there had been a fair trial of the case upon the merits, the distinction between trespass and assumpsit might be disregarded, and cited National Oil Refining Co. v. Bush, 88 Pa, 335, as sustaining him. That case cannot be so read. On the contrary, in holding that the plaintiff could not recover in assumpsit for the use and occupation of the premises, unless the jury should find that it had permitted the tenant to remain in possession of the property after the expiration of his lease, it was said by Gordon, J.: “If, indeed, as was said in the case between these same parties, reported in Bush v. Refining Co., 5 W. N. C. 143, the defendant was permitted to remain in the possession of the property, and he did so remain until the plaintiff elected by its writ of ejectment, or otherwise, to regard him as a trespasser, up to that time, it might recover from him the worth of the premises, by the action of assumpsit for use and occupation; but from the time the company made its election to treat him as a trespasser, it could no longer recover from him on the ground of an implied contract; for, the landlord, having thus determined the status of the occupant, there is no room left to presume a contract.” There is nothing in the case before us from which a contract can be presumed. The plaintiffs have unmistakably, in their pleadings and proofs, elected to treat the defendant as a trespasser, and, this being so, there can be no recovery against it in an action of assumpsit.

Skill in pleadings may be a lost art, but the distinction between assumpsit and trespass remains. Our procedure act of 1887 recognizes it, and courts cannot disregard it. A defendant, sued for trespassing upon a plaintiff’s land or for mesne profits, still has a right to say that judgment cannot be recovered against him in assumpsit. We ought hardly to be called upon to make this announcement, especially in view of what was so recently said in Reilly v. Crown Petroleum Co., 213 Pa. 595.

If this case was fairly tried upon the merits, as th¿ learned trial judge seems to think, the trial was not with the defendant’s consent. In its affidavit of defense it raised in limine the objection to the form of the action, and the first offer of the plaintiffs on the trial, which was the record of the ejectment suit between them and the defendant with the verdict and judgment thereon, followed by a habere facias, was promptly objected to as not being relevant to the issue joined under the pleadings. It is not possible to disregard the contention of the appellant that no recovery can be had against it in this action unless a cardinal rule of pleading, upon which it has a right to rely, is to be utterly ignored. This cannot be done, and the judgment must, therefore, be reversed.

The other questions raised by the assignments need not, under the circumstances, be discussed.

Judgment reversed.


author: Mr. Justice Stewaet,

text:
    Mahaffey v. New York Central & Hudson River Railroad Company, Appellant.

      Negligence — Burning of woodland — Growing timber — Measure of damages — Reforestation—Harmless error — Evidence.
    1. In an action for damages for the negligent burning over of woodland covered with second growth timber ripening into marketable material, where the loss was entire and the realty was affected apart from the loss sustained in the destruction of what was presently marketable, the measure of damages is the difference in the value of the land before and after the fire.
    2. In such a case evidence to show cost of restoring land to its previous condition is inadmissible, but its admission is not ground for reversal where the estimate as stated by the witness manifestly did not prejudice defendant.
    3. Where the land burned over was part of a larger tract, and it appeared that the growth on the land burned was of the same character as that on the unburned portion, it is competent to introduce evidence as to the condition of the latter portion, for the purpose of showing what had been destroyed, and this is especially so where the jury are taken to the land and permitted to see the whole tract including the part not burned.
    Argued April 20, 1910.
    Appeal, No. 64, Jan. T., 1910, by defendant, from judgment of C. P. Clearfield Co., May T., 1909, No. 42, on verdict for plaintiffs in case of H. B. Mahaffey and 11. F. Mahaffey v. New York Central & Hudson River Railroad Company.
    Before Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for the negligent burning over of woodland. Before A. O. Smith, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were (1-12) various rulings on evidence and instructions sufficiently appearing by the opinion of the Supreme Court.

      Thomas H. Murray, with him James P. O’Laughlin and Hazard Alex. Murray, for appellant.
    This is not a case in which the rule for damages is that applying to a condemnation case. The reason appears to be that in such case there is an actual seizure and appropriation of the land, while here there is not: Robb v. Carnegie, 145 Pa. 324; McGettigan v. Potts, 149 Pa. 155.
    October 17, 1910:
    Plaintiffs were not entitled to show the condition of the soil as affected by the fire as to the possibility of small and unmerchantable growth, and the cost of reforesting the premises: Golden Reward Mining Co. v. Buxton Mining Co., 38 C. C. A. 228.
    The plaintiffs had no right to prove the quantity and value per acre of timber outside of the burned area not burned nor injured, and for which no claim was made in the pleading: Shattuck v. R. R. Co., 88 Mass. 115; Thompson v. Boston, 148 Mass. 387 (19 N. E. Repr. 406); Roberts v. Boston, 149 Mass. 346 (21 N. E. Repr. 668); Haven v. Commrs., 155 Mass. 467 (29 N. E. Repr. 1083); Beale v. Boston, 166 Mass. 53 (43 N. E. Repr. 1029).

      A. L. Cole and A. M. Liveright, with them Harry Byers and David L. Krebs, for appellees.
    When the injury is permanent, the measure of damages is the difference in market value before and after the injury: Vanderslice v. Phila., 103 Pa. 102; Williams v. Fulmer, 151 Pa. 405; Thompson v. Traction Co., 181 Pa. 131; Noonan v. Pardee, 200 Pa. 474; Rabe v. Shoenberger Coal Co., 213 Pa. 252; Weaver v. Berwind-White Coal Mining Co., 216 Pa. 195.
    The value of the sprout growth, as indicated by the cost of reforesting, was proper for the consideration of the jury as an element in estimating the value of the land and determining its depreciation from fire: Rabe v. Shoenberger Coal Co., 213 Pa. 252; Weaver v. Berwind-White Coal Mining Co., 216 Pa. 195.
   Opinion by

Mr. Justice Stewaet,

In admitting evidence as to the difference in market value of plaintiffs’ land before and after the fire, there was no departure from the issue as defined in the pleadings. If the plaintiffs’ claim had been for the loss of a definite amount of marketable timber of a certain grade or quality, such evidence would not only have been irrelevant, but decidedly misleading; but such was not their claim. True, in the statement filed the property is described as a tract of land “largely woodland, on which there were standing and growing a large number of hemlock, chestnut, oak, pine and other valuable timber trees, a considerable part of which were suitable to the manufacture of merchantable lumber;” but the actual injury complained of in the statement was, that through the negligent act of the defendant company “150 acres of plaintiffs’ woodland were burned over and destroyed.” The evidence showed that the timber on this whole tract had some years before been cut and marketed, and at the time of the fire the entire acreage was covered by a new growth, none of it matured as timber, strictly speaking, yet much of it sufficient in size to be merchantable for certain purposes. It does not follow that what was not presently marketable because of immaturity, was without value. This smaller growth was ripening into marketable material and consequently gave added value to the land it covered. This could be said of the entire growth, since none of it was fully matured. Two standards of measurement of loss could not be applied, one for the material that was marketable, and another for that not marketable. The loss was an entire one, and the only standard applicable would be one covering every element of loss. Here the realty was, affected apart from the loss sustained in the destruction of what was presently marketable. The rule governing such cases is thus stated in 3 Sedgwick on Damages, sec. 933, “The measure of damages when ornamental or fruit bearing trees, or growing timber are cut, is the difference in the value of the realty before and after.” The authorities cited in the note to this text show how widely this rule prevails. The measure of damages applied here was the correct one, and assignments of error, Nos. 1, 2, 3, 4 and 10, are overruled.

The chief value of plaintiffs’ land was in prospective yield of timber. It was plaintiffs’ contention that the fire had practically destroyed the reproductive capacity of the land in this regard, and that only as assisted by actual reforestation could it be made to produce. Evidence was admitted to show the cost of such reforestation. If this evidence was intended as a basis for estimating plaintiffs’ damage it was all wrong to admit it. The cost of restoring the property to its condition before the fire, would not be the correct standard of measurement, but the difference in the market value of the real estate for any purpose to which a purchaser might devote it. We would regard the admission of this evidence as reversible error, were we not convinced that it was without prejudice to the defendant. The cost of reforestation as stated by the witness is so far below the lowest estimate given by any witness of the depreciation of the market value of the ' land — the only true measure — that it is manifest that the evidence advantaged rather than prejudiced the defendant. The assignments, 7, 8 and 9, are accordingly overruled.

The land burned over was part of a larger tract. Evidence was admitted without, objection that the growth on the land burned over was of the same kind, character, thickness and density as that standing on the unburned portion. Following this, a witness was called to testify to conditions on the unburned portion, not as preliminary to any estimate of damages by the witness, but to inform the jury as to what had been destroyed. If this was not proper evidence, it could only be because it was not the best. We are by no means sure that it was not the best in view of the fact, that the jury, at the instance of the defendant, were taken to the premises to examine for themselves, and that they were there permitted to see the whole tract including the part unaffected by the fire.

We find nothing substantial in any of the assignments of error and the judgment is affirmed.


author: Mr. Justice Stewakt,

text:
    Kelley, Appellant, v. Cumberland County.

      Road law — Counties—County road — Negligence—Prison board — Prisoner working on roads — Act of May 25, 1907, P. L. 247.

    1. Apart from the Acte of June 26, 1895, P. L. 336, April 15, 1903, P. L. 188, and May 25, 1907, P. L. 247, no legislative warrant can bo found for county interference with public roads or the imposition of any charge upon the counties for their maintenance.
    2. A county is not liable for injuries caused by negligence in repairing a public road within the county undertaken by the prison board of the county in supposed pursuance of the provisions of the Act of May 25, 1907, F. L. 247.
    3. The Act of May 25, 1907, F. L. 247, gives full power and authority to the prison board to employ male prisoners in work on the public highways, but it is a power the employment of which is left wholly in the discretion of the board. Its exercise is not a duty enjoined by the statute. This being the case it acts only in a discretionary way, and cannot make the county liable for a negligent act m repairing the road.
    4. A municipal corporation is not impliedly liable to an action for damages either for the nonexercise of or for the manner in which in good faith it exercises discretionary power of a public or legislative character.
    5. Even if the prison board were a county agency it could only make the county liable where the work done by the board was for the benefit and advantage of the county in its corporate capacity; and the repairing of a road is not such a benefit or advantage.
    Argued April 26, 1910.
    Appeal, No. 326, Jan. T., 1909, by plaintiff, from judgment of C. P. Cumberland Co., Feb. T., 1909, No. 129, on verdict for defendant in case of George D. Kelley et al. v. Cumberland County.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries alleged to have been caused by negligence in repairing a public road. Before Sadler, P. J.
    The opinion of the Supreme Court states the case.

      The court gave binding instructions for defendant.
    Verdict and judgmentfor defendant. Plaintiff appealed.

      Error assigned was the instruction of the court.

      F. E. Beltzhoover, with him Fillmore Maust, for appellant.
    As a general rule a municipal corporation' is not responsible for the unauthorized and unlawful acts of its officers although done colore officii, but when such corporation expressly authorizes such or when done adopts and ratifies it and retains and enjoys its benefits it is liable in damages: Bathurst Boro. v. Macpherson, L. R. 4 App. Cas. 256; Smith v. West Derby Local Board, L. It. 3 C. P. Div. 423.
    Where the statute gives a power to the commissioners which is discretionary and they assume to exercise the power and perform the duty and by negligence injure a third party the county is liable: Lehigh County v. Hoffort, 116 Pa. 119; Rowland v. Kalamazoo County Superintendents of the Poor, 49 Mich. 553; Reed v. Howell County, 125 Mo. 58 (28 S. W. Repr. 177); Bigelow v. Randolph, 80 Mass. 541; Vankirk v. Clark, 16 S. & R. 286.

      S. B. Sadler, with him M. F. Thompson, for appellee.
    The trend of modern decisions is all in the direction of nonliability, unless a clear imposition of duty in the performance of particular acts appears by the act of assembly: Bucher v. Northumberland County, 209 Pa. 618; Hubbard v. Crawford County, 221 Pa. 438; Ford v. School Dist., 121 Pa. 543; School Dist. v. Fuess, 98 Pa. 600; Elliott v. Phila., 75 Pa. 347; Norristown Boro. v. Fitzpatrick, 94 Pa. 121; Grant v. City of Erie, 69 Pa. 420; Symonds v. Clay County Supervisors, 71 Ill. 355; Hollenbeck v. Winnebago County, 95 Ill. 148; Hammond v. Richmond County, 72 Ga. 188; Commissioners v. Mighels, 7 Ohio St. 109; Bailey v. Mayor, etc., of New York, 3 Hill, 531; Fry v. Albemarle County, 86 Va. 195; Field v. Albemarle County, 20 S. E. Repr. 954; Hill v. Boston, 122 Mass. 344; Freeholders of Sussex v. Strader, 18 N. J. L. 108.
    October 17, 1910:
   Opinion by

Mr. Justice Stewakt,

Admittedly no statutory right of action here exists. If any liability whatever attaches to the county, it must be an implied liability arising out of the performance of a positive or absolute duty enjoined. Was the act of negligence here complained of committed in the performance of such positive or absolute duty? This must be our first inquiry. The negligence alleged was in connection with the repairing a public road within the county, undertaken by the prison board of the county in supposed pursuance of the provisions of the act of May 25, 1907. The act is entitled, “An Act authorizing the employment of male prisoners of the jails and work houses of this Commonwealth upon the public highways of the several counties, and regulating the same; and providing for the establishment of Prison Boards, the purchase of materials and tools, and the employment of deputies, at the expense of the proper county,” etc. The title indicates clearly the scope of the act, and the text shows an unmistakable purpose to intrust to the several counties a power in connection with the public roads which they never had before. Certainly prior to the act of June 26, 1895, the counties were without legislative warrant for any interference with the public roads within their respective limits. Such roads were distinctly township roads, and the whole responsibility for their repair and maintenance was imposed on the townships through which they passed, each township being made responsible for so much of any road as was within its own limits. The counties in their corporate capacity had nothing to do with these roads, and had no more right to enter upon them, or do any kind of work thereon, than the private individual would have. Such a thing as a county road was unknown until the act of June 26, 1895. This latter act empowered the commissioners of any county, upon the approval of the grand jury and the court of quarter sessions, "to relocate, open, straighten, widen, extend, alter and construct any public road or highway or a section thereof within the county,” and provided that any road constructed or improved under its provision should forever thereafter be a county road, the duty of keeping and maintaining the same to devolve upon the county at its expense. Its only relevancy in this connection is to mark the clear distinction between township roads and county roads. It is not pretended that the road in question ever became a county road under the provision of this act. This legislation was followed by the Act of April 15, 1903, P, L. 188, establishing a state highway department, and providing for the application of counties and townships for state aid in highway improvement. This act calls for no discussion since it is in no way here involved. Outside the several acts above mentioned and those relating to the employment of prison labor — yet to be considered — we repeat, no legislative warrant can be found for county interference with public roads, or any legislation which imposes any charge upon the counties for their maintenance. The obligation upon the counties to maintain county bridges is a matter wholly apart. The acts we have cited show a marked departure from what had been a settled policy of the state with respect to liability for maintenance of public roads; but they are limited in scope, and impose liability on the county only for such roads' as should thereafter be improved or constructed according to the terms and conditions prescribed in the particular act. Clearly the road with which we are here concerned was not within the purview of either of them. Therefore it is, that if duty rested on the prison board to make these repairs, it must be found in the Act of May 25, 1907, P. L. 247, relating to the employment of prison labor, and there only. This act creates a prison board in each county, composed of the’ sheriff and the county ■commissioners, “for. the employment.of persons in jail,” and gives to such prison boards “full power and authority to compel the said male prisoners to work on the public highways outside the limits of said jails and workhouses, and within their respective counties.” It would seem that the power here conferred is to enter upon any of the highways within the county. But be that as it may, in any case it is a power the employment of which is left wholly in the discretion of the board. Its exercise is not a duty enjoined. “Where any person has a right to demand the exercise of a public function, and there is an officer or set of officers authorized to exercise that function, there the right and the authority give rise to the duty; but where the right depends upon the grant of authority, and that authority is essentially discretionary, no legal duty is imposed:” Carr v. Northern Liberties, 35 Pa. 324. So it necessarily results that, even though authority existed for the prison board to improve this particular road, such work of repairs was not the performance of a duty required of the board by any statute. “A municipal corporation is not impliedly liable to an action for damages either for the nonexercise of, or for the manner in which in good faith it exercises discretionary power of a public or legislative character:” Dillon on Municipal Corporations, sec. 949. But, it is argued, a' liability exists for acts done in the discharge of a self-imposed duty, not enjoined by law, and that when this prison board elected to exercise the power given it by this statute, a duty resulted which was attended with the same obligations as would have been incident had the duty been positively enjoined. Even assuming the prison board to have been a county agency, the principle here asserted could apply only in case it appeared that the work done by the board was for the benefit and advantage of the county in its corporate capacity. In the matter of liability for negligence the law makes a clear distinction between municipal corporations proper, such as cities and boroughs, and such subdivisions as are only quasi corporations, as counties and townships. “But the distinction, whatever its grounds, or precise boundaries, or difficulties in its application, is well established; and the latter class of corporations (quasi) is considered to be impliedly liable (unless the legislation negatives such liability) for wrongful acts done in what is termed their private or corporate character, and from which they derive some special or immediate advantage or emolument, but not as to such acts done in their public capacity as governing agencies, in the discharge of duties imposed for the public or general (not corporate) benefit:” Dillon on Municipal Corporations, sec. 966. Since the condition of the public roads was not a matter of county (corporate) concern, it is impossible to see how any advantage or emolument could result to the county as a corporation from the improvement that was made in this instance by the prison board. It is manifest that the improvement could neither increase the revenue of the county nor lighten its burdens. That it contributed to the ease and comfort of the general public is doubtless true, but that is aside from the question. What we are to look for is private or corporate advantage, and surely there was none here. Not only so, but we can discover no purpose in the act of May 25, 1907, authorizing the employment of jail labor, to benefit the counties as counties. The act declares its sole purpose to be to provide for the better employment of prisoners and improvement of the highways of the commonwealth. Whether the prisoners in jails shall be compelled to labor, is a matter of public concern, not affecting the counties in any way. The same is true, as we have seen, in the matter of the improvement of the highways. Neither of these objects is a proper and legitimate subject for county regulation. Both are matters of state policy. In electing to exercise the power given it by the act, the prison board became a governing agency for the performance of duties imposed for the public or general good. In so acting it represented the state, and inasmuch as the principal is exempt from liability, the same exemption attaches to the subordinate. The doctrine of respondeat superior cannot in such case apply. We are of opinion the case called for binding instructions for the defendant, and the judgment is accordingly affirmed.