author: Mb. Justice Mestrezat,

text:
    Pressed Steel Car Company v. Standard Steel Car Company, Appellant.

      Equity—Injunction—Mandatory injunction—Wrongful use of blue prints and drawings.

    Where a ear manufacturing company delivers to its customers blue prints in connection with the orders for cars for the information and use of the purchasers as a necessary part of the transaction, and also for their use in ordering repair parts, and the customers deliver the blue prints to a rival car manufacturing company so that the latter might use them in manufacturing and selling cars and car parts, the latter company will be compelled by a court of equity to surrender up such blue prints to the former company.
    Argued Nov. 1, 1904.
    Appeal, No. 51, Oct. T., 1904, by The Standard Steel Car Company from decree of C. P. No. 1, Allegheny Co., June T., 1902, No. 554, on bill in equity in case of Pressed Steel Car Company v. John M. Hansen, C. S. Culverhouse, William Bierman and Standard Steel Car Company.
    Before Mitchell, C. J., Dean, Fell, Beown, MesTEEZAT, Pottee and Thompson, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Maceaelane, J., filed the following opinion:
    1. The Pressed Steel Car Company is a corporation organized under the laws of the state of New Jersey, in the year 1899. It succeeded to the business theretofore carried on by the Schoen Pressed Steel Company. The company is now, and has been since its incorporation, engaged in a very large way in the manufacture of steel cars, car parts, bolsters, trucks and other similar railway equipment. Almost all of the parts of its ears are made of pressed steel and are produced from plates pressed or formed by dies. The company is the pioneer company in the manufacture of pressed steel cars, and prior to January, 1902, was the only company engaged in such manufacture in a commercial way. Prior to the formation of the defendant company, the plaintiff had also made about 1,600 structural steel cars. Its product of pressed steel cars was about one 100,000.
    2. The Standard Steel Car Company is a corporation organized under the laws of the state of Pennsylvania in the month of December, 1901, and is also engaged in the manufacture of steel cars and car parts in competition with the plaintiff company, having completed the erection of a plant and begun the manufacture of cars about the month of August, 1902. The principal parts of the cars produced by it are made of structural material which does not undergo the process of pressing, but these cars have some pressed steel parts.
    3. The manufacture of pressed steel cars and their parts requires great engineering and mechanical skill, and the construction of cars for use on the various railroads and the adaptation of them to the needs and wishes of the railroads require the constant designing of new cars and parts of cars, and the exercise of mechanical and engineering skill and ability, so as to meet the requirements of the various railroads. For this purpose the plaintiff company maintains an engineering department which is engaged in the designing of cars and the machinery for the manufacture of cars, and its expense in this respect alone is more than $100,000 per year.
    4. In connection with the designing and construction of these cars the company prepares drawings or tracings showing the various parts of the cars to be built and how the different railway specialties and appliances can be successfully applied to cars which it manufactures. Blue prints of these drawings are sent to the railroad companies proposing to purchase cars so as to enable them to ascertain whether or not the cars which it is proposed to build will meet their requirements, each order of cars being specially designed to meet the particular requirements of the railroad for which they are built. During the manufacture of the cars copies of these blue prints are frequently furnished to the railroad companies for the purpose of inspecting the cars to see that they are built in accordance with the drawings. And after the cars are built and delivered, or contemporaneously therewith, blue prints of the cars are furnished to the railroads so as to enable them either to order parts necessary for repairing the cars or to make the repairs on the cars themselves. It is common practice with the railroads to order from the plaintiff company and keep in stock with their storekeepers a large number of such parts of the cars as will most likely be needed for repairs, and for this purpose it has been customary to, and it is necessary that they should, have these blue prints.
    All of the blue prints so sent out by the plaintiff company were sent out only in connection with the carrying on of its business in the manner and for the purpose stated and receipts for them were generally required to be given by the persons by whom they were obtained.
    It was also the rule of the company that receipts should be given by its own officers for all prints sent out from the general offices.
    5. In December, 1901, and probably as early as November, 1901, the defendant, Hansen, together with certain other persons who were employees of the plaintiff company, decided to organize a new company to engage in the manufacture of steel cars in competition with the plaintiff.
    At this time Hansen was the chief engineer of the plaintiff company, the defendant, Bierman, was his secretary, and the defendant, Culverhouse, was chief clerk of the engineering department under Hansen. Peter F. McCool, one of the incorporators of the new company, was superintendent of the Mc-Kees Rocks plant of the plaintiff; H. J. Gearhart, another incorporator of said company, was the auditor of the plaintiff company; G. H. Goodell was its assistant chief engineer; J. B. Brady was its general sales agent; W. O. Jacquette held an office and W. H. Shoen was its first vice president.
    In pursuance of the decision of the said Hansen and others aforesaid in the month of December, 1901, an application was made for a charter for the defendant Standard Steel Car Company, which was granted, and on January 1, 1902, the said Hansen left the employment of the plaintiff company, and took charge, and became president, of the Standard Steel Car Company, which company immediately commenced to erect a plant for the manufacture of cars and to make preparations to manufacture cars therein, and some time in August, 1902, actually began to manufacture cars.
    ■ All of the persons mentioned above as employees or officers of the Pressed Steel Car Company left the employ of the plaintiff company and became associated with the Standard Company as employees or officers thereof.

      6. The defendant company has received and has in its possession certain blue prints, designated in the list “ Exhibit No. 4” which were made in the offices of the plaintiff company from its drawings and showing cars and car parts, and it has also a large number of blue prints made by different railroad companies from tracings or drawings made by these companies from blue prints furnished to them by the Pressed Steel Car Company, the latter prints for convenience, if not with strict accuracy, being termed in this case, copies, or “ secondary prints.” Just how far, if at all, these secondary prints vary from the plaintiff’s drawings does not appear, but they are in most particulars reproductions of plaintiff’s drawings and show cars and car parts substantially of the character and design manufactured, or proposed to be manufactured, by the plaintiff company for the said railroad companies. The blue prints in controversy here, are die prints and construction prints, the latter being originals and copies, and, in addition, some blue prints of bills of material referred to in paragraph eight of these findings.
    7. The defendant company never received or had in its possession and the defendant, Hansen, did not nor did any of the other defendants at any time have in their possession, any dies, print or prints showing the essential features of dies used by the plaintiff, except that some such drawings were in the possession of the defendant Hansen when he was an officer of the plaintiff company, but no such prints were removed by him or any of the other defendants from the plaintiff’s premises.
    8. The defendant, Culverhouse, as admitted by his answer, ordered and had delivered to him, just prior to his leaving plaintiff’s employment, certain blue prints of bills of material of the plaintiff company which remained in his personal possession until they were produced in court and placed in the custody of the prothonotary. These prints were so procured and retained by the said Culverhouse without the knowledge or connivance of any of the other defendants. These prints are the property of the plaintiff company, and in the findings and opinion are always referred to as bills of material or blue prints of bills of material.
    9. None of the blue prints, originals or copies, were procured by tbe defendants, or any of them, from the plaintiff company, but the originals had been sent by that company to railroad companies and one individual. And, first, the original prints in the possession of the defendant company, except the W. H. Miner prints, had been sent to the railroad companies in connection with orders for cars made by the Pressed Steel Car Company for the railroads for their information and use, as a necessary part of the transaction, and also for their use in ordering repair parts. There was no expressed limitation on the part of the Pressed Steel Car Company as to the use to which the prints should be put, and ho expressed restriction placed upon the ownership. Such are the cases of the Central Railway of New Jersey, the Northern Pacific Railway and the Great Northern Railway. The purpose was, however, understood by all parties. The prints sent to the Central Railway of New Jersey were used by their car inspector, A. Christianson, in the inspection of the cars during the progress of manufacture, and; upon his, becoming an employee of the Standard Car Company, he delivered them to that company early in the year 1902. He never owned these prints and had no authority from the Central Railway, of New Jersey to so dispose of them. The Great Northern Railway prints were sent by that company to the Standard Company in June, 1902, under an agreement to return them. The Northern Pacific prints were delivered to the Standard Company without restriction.
    Prints had been sent by the Pressed Steel Car Company to W. H. Miner, a manufacturer of a draft rigging for cars, for his use in adapting and applying the rigging to cars made by that company. At the request of the defendant company, he sent them to it for the information of its officers in the matter of adapting the rigging to its cars and he gave them the option of retaining them, which they have elected to do; and second, the copies or secondary prints, of which there is a large number in the possession of the defendant company, were, as herein-before stated, made from original blue prints sent by the Pressed Steel Car Company under the circumstances stated. The copies were sent to the defendant company for its information and, in some instances, in connection with negotiations for contracts for the manufacture of cars, or after orders had been given by them. These prints, both originals and copies, are of great value and use to the defendant company, and their possession by it is a damage to the interests of the plaintiff company.
    10. The number of these copies of prints is so great that an investigation at the trial of the circumstances of each was a practical impossibility, but these findings are sufficient to raise the questions at issue.
    Aside from the blue prints of bills of material, produced by Mr. Culverhouse, which are the property of the plaintiff, we have presented the question whether the prints and copies of prints in the possession of the defendant company become the absolute property of the parties to whom the plaintiff sent them, so that they had the right to deliver them, or copies of them, to a rival company, or whether, under all the circumstances, a court of equity should protect the plaintiff and give it relief.
    Counsel for the plaintiff succinctly state their position as follows: “There is no contention on the part of the plaintiff that there was any express agreement with the person to whom the prints were sent that they should be used only in a particular way, but certainly the absence of such restriction does not under the circumstances in this case prove the presence of an understanding or agreement that the prints should be taken by the railroad companies and delivered to a rival concern for the purpose of enabling it to compete with the plaintiffs.

      “ What we do contend is that in the sending out of such prints in the manner shown in this case for the purpose of business transactions between the railroad company and the car company, there was implied an agreement that their use should be limited to purposes naturally arising from the business relations existing between the parties; and especially that there was an implied agreement that they should not be given to a rival company for the purpose of enabling it to compete with the plaintiff; and that the furnishing by the railroad company to the Standard Company of prints obtained under such circumstances is a gross breach of confidence.
    “We therefore contend that we are entitled to an injunction here upon the ground (1) of a property in the designs shown by these prints and in the prints themselves; and (2) that the surrender of these prints to the Standard Company, if done with the consent and approval of the person to whom they were delivered by us, was such a gross breach of good faith and confidence as entitles us to relief at the hands of a court of equity.”
    The industry of counsel and our own examination has failed to find any decision of any Pennsylvania courts ruling this proposition. In a great manufacturing community like ours, this, or a similar situation, frequently arises. An engineering and contracting concern negotiates for the erection of a furnace or large steel plant, sends to the proposed customer blue prints of drawings, which are the results of years of study and experience and have been produced at a large expense, and an offer is made to construct the plant at a certain price. The purchaser sends either the prints, or copies of them, to a competing contractor and solicits his bid, thus giving him the benefit of the skill, experience and pecuniary outlay of the other. Or the rival solicits the loan of the blue prints for its own information, or for its use in bidding against the one whose designs are acceptable.
    • This case, however, affords an excellent illustration. The chief engineer of the Pressed Steel Car Company promotes a company to enter into competition with his employer. Immediately upon the formation of the new concern, a large number of the employees, in various departments of the old, leave and enter the employment of the new. They bring with them, as is their undoubted right, the skill and experience gained while working for the pioneer company. This would enable the new company to avoid many of the expensive experiments and mistakes of the old, and these engineers and draftsmen, with their knowledge of the construction of the cars and of the method of manufacture, according to their own testimony, should have been able to measure the cars made by the company and to produce in a short time detailed and practical drawings from which the cars could be constructed. They did not do this, for the very obvious reason that blue prints of drawings were available and were accurate. It is idle to say that these drawings are of no value, or of little value. The railroads to whom the Pressed Steel Car Company liad furnished ears sent the blue prints furnished to them to the new company, naturally welcoming the advent of competition likely to reduce prices, or some complaisant subordinate, or even head of a department, assists a new company to obtain the results of the experiments of the old in a shape, that, at a glance, conveys more information to an engineer, and particularly the engineer who made the drawings, than would the reading of a descriptive book or the examination and measurement of many cars. This may be “ good business, ” but the element of unfairness in the transaction forcibly strikes the mind.
    It is argued that these prints were obtained by the defendant company in the “ ordinary course of business ” and we are asked to make this a finding of fact. The expression is too indefinite for such use. In some instances, the railroads, having obtained from the Pressed Steel Car Company cars, which exactly, or with some modifications, suited their requirements as to size and character, gave to the Standard Company copies made by them, which would show their requirements. The Standard could then modify the construction from pressed steel to structural steel, or if the car furnished by the Pressed Steel Car Company was a structural steel car, the Standard Company knew the exact needs of the customer. Such a transaction is in the course of a business negotiation or contract, but to call it “ in the ordinary course of business ” would not necessarily justify it. We have here, generally speaking, one set of facts, where the defendant company moves to get an advantage over its rival and obtains its information from that rival’s actual or possible customers, and the other, where the customer makes the move for its own advantage and uses the information placed in its hands.
    On the other hand, the Pressed Steel Car Company has from the necessities of its business, or through a feeling of security, caused by the fact that it was alone in the field, placed its designs in the hands of its customers and has not exacted any agreement as to their use, has not marked on the prints “ the property of the Pressed Steel Car Company,” and never said in so many words that the prints themselves, or copies, must not be given to a competitor.
    That a court of equity has, in a proper case, jurisdiction to decree the return of drawings and copies thereof, was decided in 1849, in the case of McGowin v. Remington, 12 Pa. 56. Remington, intending to leave Pittsburg, where he had for many years been a surveyor and regulator and had a large collection of drafts and plans and desiring to assist McGowin, who had been his pupil and proposed to follow the same business, left in his custody and care for the mere purpose of promoting McGo win’s interests and business, all of the plaintiff’s plans and drafts to be used until Remington should require them. This was a loan, a bailment and not a sale or gift of the articles. This case recognizes the principle frequently asserted by courts of equity, that there is a property in the design, in the idea, and in the mental conception, as well as in the piece of paper on which it is expressed. Says the court: “ If we add the fact that some of these documents are the original work of the plaintiff, of value as being predicated upon data possibly no longer accessible, a wrong is perpetrated which a chancellor ought not to hesitate in relieving.” There was here a breach of confidence, as well as a refusal to return bailed property. The effect of the decree requiring the delivery of the copies is that Remington, now returned to Pittsburg to resume his old occupation, is entitled not only to his plans, but that his competitor shall not have the permanent advantage of the information contained in those plans. The plots were loaned to McGowin for his information and assistance in promoting his business, yet he is denied the use of copies.
    That the Pressed Steel Car Company had an exclusive property in the drawings in its offices, and no one, whether draftsmen or other employee, had any right to have blue prints made for his own use or the use of others. It matters not that the parts of the cars were not protected by patents and that the process of manufacture was not a secret one. A certain amount of publicity is unavoidable in any manufactory, but an unlocked door is not an invitation to the passer-by or to the servant of the household to help himself. Neither does a .manufacturer abandon his property in a design by delivering it or a copy to another for a restricted purpose, nor by a limited ■publication. His property rights will be protected in such cases, and he will be protected against a breach of trust, confidence or contract, and, especially, will he be protected against a breach of the confidence existing between employer and employee.
    These principles are supported by a number of well-considered cases. On the rights of an employer against an employee, the following cases, cites in the plaintiff’s brief, are in point: Lamb v. Evans, L. R. (1892) 3, Chan. 462, where canvassers, employed to obtain advertisements for the plaintiff’s trades directory and to supply him with blocks and materials necessary for producing the advertisements, were held to have no right to use these blocks and materials for the purpose of a rival publication. The court cites a case where a cutter, in the employment of a tailor, was enjoined from using copies of customers’ patterns made by him before he left his master.
    Lewis v. Smellie, 73 Law Times Rep. 226, a solicitor’s clerk copies the register and 'index of agents and firms used by the plaintiff in process serving and started to use them in a rival business and was enjoined. Merryweather v. Moore, L. R. (1892) 2 Chan. 518, a clerk to a firm of engine makers compiled a table of dimensions of various types of engines for his use in the service of a rival concern. Held to be a breach of his implied contract arising from the confidence that a servant shall not use, except for the purpose of service, the opportunities which that service gives him of obtaining information. The court said: “ It is quite clear that, independently of any question as to the right at law the court of chancery always had an original and independent jurisdiction to prevent what that court considered and treated as wrong, whether arising from the violation of an unquestionable right or from breach of contract or confidence. . . . Perhaps the real solution is that the confidence postulates an implied contract that where the court is satisfied of an existence of the confidential relations, then it at once infers or implies the contract arising from that confidential relation.” The abuse of the confidence, necessarily arising out of the circumstances, is the ground of the injunction.
    It is hardly necessary to cite authority for deciding that the bills of material must be returned to the plaintiff, under the facts found in paragraph eight. The excuse for taking them was that it was customary for draftsmen to make blue prints of their work and to retain them for their own use. If there be such a practice, it is a reprehensible one. The principles underlying these cases have, however, a bearing’ upon the question of the other prints, viz: A breach of the confidence necessarily arising out of the relation between the parties, that relation raising an implied contract. Broadly stated, it is that a court of equity will not permit anyone to take an unfair advantage of a position in which he has been placed through any relation of confidence and trust, or, we think, through the necessities of, or as an incident to, a contract. A familiar example is that of an architect’s plans. The form of contract used generally throughout the United States provides that the plans belong to the architect, and shall be returned to him upon the completion of the building. In the absence of such a stipulation, should a contractor be allowed to use in the construction of other buildings plans and -specifications furnished him by an architect in connection with and as a necessary part of the builders’ contract with the owner by whom the architect was employed? Or, should he be permitted to turn them over to another architect for his use ? And, if the owner asks for-blue prints so that he may inspect his building during construction for his pleasure and information, or for the purpose of making some alterations and additions, would not his act in using them to obtain bids from other architects be considered by all right-minded people a breach of decency and honorable dealing ? Courts of equity do not enforce abstract principles of ethics, but this is something more. If the builders or the owners should be enjoined from using designs so obtained, equally so should the architect, who unfairly and improperly receives information, however properly obtained by another. We think this case is ruled by the same principles, unless the method of the publication and the circumstances of the case amount to an abandonment of the special rights of the plaintiff, unless there was an absolute, unrestricted gift of the prints, giving the railroad companies a title not only to the prints but to the design, so that-they had aright to use them, or to give them to others, for the purpose of constructing cars.
    It is undoubted that there may be a publication of a book, a piece of music or a picture without an abandonment of the author’s or artist’s property rights. A student of a system of bookkeeping who was permitted by the teacher to copy notes of the lectures was not permitted to publish them. Such use was not in contemplation of the teacher. The publication of a book for private circulation is not an abandonment of the author’s rights. At common law, the author of a manuscript might obtain redress against one who had surreptitiously got possession of it. An inventor does not lose his rights unless he suffers his invention to go into public use without objection. It is a question of intent as to the extent of the license: Bartlette v. Crittenden, 4 McLean, 300. The exclusive right to one to make reproductions of a picture does not justify another to make and sell photographs: Oertel v. Wood, 40 Howard’s Prac. 10. So the exhibition of a blue print of machinery in a frame in the office of the purchaser, although done by permission of the manufacturer, a copy of whose drawing it is, certainly is not a general publication and an abandonment of exclusive rights in the drawing. The furnishing of a dozen such prints so that the employees of the purchaser may become thoroughly conversant with the construction and operation of the machinery, is a limited publication. When the Pressed Steel Car Company permitted its customers to have blue prints, it did not give them the right to a use which was not in the contemplation of both parties, and which would give an unfair advantage to a competitor.
    We have discussed this case to so great a length on account of the importance of the principles involved.
    CONCLUSIONS OK LAW.
    1. The defendant, the Standard Steel Car Company, is not entitled to the possession of the original blue prints of the Pressed Steel Car Company’s cars and car parts, and must deliver them to the plaintiff.
    2. The blue prints of bills of material now in the hands of the prothonotary are to be returned to the plaintiff.
    3. All copies or tracings of drawings or of blue prints of drawings of the Pressed Steel Car Company are tobe delivered to the plaintiff whether the said copies have been made by the defendants or by third parties. For the purpose of identifying these copies and of ascertaining the necessary facts there should be a reference to an expert or examiner, unless the parties can agree to some other method of ascertaining the facts.

      Let the decree be drawn in accordance with the foregoing and enjoining the defendants from using any of the blue prints or copies thereof. The defendant, the Standard Steel Car Company, to pay the costs.
    A decree was entered in accordance with the opinion.

      Errors assigned were various findings and conclusions, and the decree of the court.

      William. Scott, of Dalzell, Scott Gordon, with him Clarence Burleigh, for appellant.—
    The blue prints in question do not relate to matters which were the exclusive property of the plaintiff so as to be within the rule as to trade secrets or literary property. Even if these blue prints could be held to be trade secrets or literary property of the plaintiff, the evidence does not warrant the finding that their delivery by the plaintiff was otherwise than absolute and unconditional, and without limitation or restriction as to their ownership or use: Bristol v. Equitable Life Assurance Society, 132 N. Y. 264; (30 N. E. Repr. 506) ; Keene v. Wheatley & Clarke, 9 Am. Law Reg. 33 ; Gendell v. Orr., 36 Legal Int. 412 ; Wright v. Eisle, 86 App. Div. 356; 83 N. Y. Supp. 887; Rees v. Peltzer, 75 Ill. 475 ; Oertel v. Wood, 40 How. Pr. 10; Palmer v. DeWitt, 47 N. Y. 532; Oertel v. Jacoby, 44 How. Pr. 179. Even upon the plaintiff’s contention this proceeding, under the findings and decree of the court, affects the property rights of persons who are not before the court.

      James II. Beal, of Deed,- Smith, Shaw Beal, for appellee.
    The transaction between the appellee and the railroad receiving the prints certainly was not a sale, nor was it a gift. There is nothing in it to suggest that the railroad company acquired the property in the blue print itself, much less in the design shown by the print. What took place was a delivery by the appellee to the railroad company of these prints .for the purpose of a business transaction between the parties. It was done so that the prints might be used in connection with that transaction. It was for that purpose that the railroad company received the prints. We submit that this constitutes a bailment and nothing else, and that the railrbad company had no right whatever to transfer these prints to anyone else, especially not to a business rival: McGowin v. Remington, 12 Pa. 56; Dock v. Dock, 180 Pa. 14; Oertel v. Wood, 40 Howard’s Pr. 10; Keene v. Wheatley, Fed. Cases, 7644; Bartlette v. Crittenden, 4 McLean, 300; Prince Albert v. Strange, 1 Macnaughten & Gordon, 24; Lamb v. Evans, L. R. (1892) 3 Ch. 462; Lewis v. Smellie, 73 Law Times Rep. 226; Merryweather v. Moore, L. R. (1892) 2 Chan. 518.
    December 31, 1904:
   Opinion by

Mb. Justice Mestrezat,

The very elaborate opinion of the learned trial judge renders unnecessary an extended review of the questions involved in this case. We are satisfied that the evidence fully justifies his findings of fact and we are equally well convinced that his conclusions of law on the facts are correct. The drawings or tracings of the parts of the cars and the blue prints, except the “ secondary prints,” were made by the appellee company to be used in connection with, and were necessary for, carrying on the business in which the company was engaged. The court finds as follows : “ In connection with the designing and construction of these cars the company prepares drawings or tracings showing the various parts of the cars to be built and how the different railway specialties and appliances can be successfully applied to cars which it manufactures. Blue prints of these drawings are sent to the railroad companies proposing to purchase cars so as to enable them to ascertain whether or not the cars which it is proposed to build will meet their requirements, each order of cars being especially designed to meet the particular requirements of the railroad for which they are built. During the manufacture of the cars copies of these blue prints are frequently furnished to the railroad companies for the purpose of inspecting the cars to see that they are built in accordance with the drawings. And after the cars are built and delivered, or contemporaneously therewith, blue prints of the cars are furnished to the railroads so as to enable them either to order parts necessary for repairing the cars or to make the repairs on the cars themselves. It is common practice with the railroads to order from the plaintiff company and keep in stock with their storekeepers a large number of such parts of the cars as will most likely be needed for repairs, and for this purpose it has been customary to, and it is necessary that they should, have these blue prints.

All of the blue prints so sent out by the plaintiff company were sent out only in connection with the carrying on of its business in the manner and for the purposes stated and receipts for them were generally required to be given by the persons by whom they were obtained.”

The drawings and blue prints in controversy were, therefore, not sold or given to the railroad companies but were the property of the plaintiff and made by it for the purpose of carrying on its business and were sent out in connection with the business of the company. Part of these blue prints were sent to the three railroad companies in connection with orders for cars made by the plaintiff company for the railroads but as found by the court only “for their information and use, as a necessary part of the transaction, and also for their use in ordering repair parts.” The remainder of the prints were sent by the plaintiff to one W. H. Miner, draft rigging manufacturer, for his use in adapting and applying the rigging to cars made by the plaintiff company. Notwithstanding the fact that these prints were delivered by the plaintiff to the parties for the purpose stated in the finding of the court, they delivered them to the defendant, a rival company, which is now making use of them in carrying on a competing business. While there was no expressed restriction placed on the ownership of the prints or any expressed limitation as to the use to which they were to be put, it is clear, as observed by the trial court, that the purpose for which they were delivered by the plaintiff was understood by all parties. ' The facts of the case warrant no other conclusion. There is no evidence to sustain the contention that the delivery of the prints by the plaintiff to the railroad companies was absolute and unconditional. As suggested above, there was no expressed agreement on the subject, but the facts clearly support the finding of the trial court that the prints were sent in connection with the orders for cars for the information and use of the purchasers as a necessary part of the transaction, and also for their use in ordering repair parts. The blue prints therefore remained the property of the plaintiff after delivery to the railroad companies, whose use of them was restricted to the purpose for which they were delivered, and a chancellor will sustain a bill to enjoin the use of them for another purpose by the railroad company or the defendant company to which, without the plaintiff’s consent, they were delivered.

We see no grounds whatever upon which the appellant can claim ownership in the prints or the right to use them in its business of manufacturing and selling steel cars and car parts in competition with the plaintiff. It is not pretended that the defendant company paid any consideration for them to the plaintiff or to the companies from which it received them. The right to hold them as against the plaintiff is based simply on the fact that the prints were delivered to the defendant company by the railroad companies so that they might obtain their cars and car parts from the defendant instead of the plaintiff and thus by the use of the plaintiff company’s own designs enable them to give their trade to its rival competitor. In other words, the prints which had been delivered to the railroad companies to enable them to purchase and use the cars and car parts manufactured by the plaintiff were delivered by the railroad companies to the defendant company so that the latter might manufacture and sell cars and car parts from designs and drawings which had been prepared by the plaintiff for exclusive use in its own business. This was clearly a violation, not only of the property rights of the plaintiff in the prints but also of the trust and confidence with which they were received by the railroad companies. This unauthorized act and breach of confidence resulted in great advantage to the appellant and loss to the appellee. The court finds that “ these prints, both originals and copies, arc of great value and use to the defendant company, and their possession by it is a damage to the interests of the plaintiff company. ” These facts will, on reason and authority, as shown by the learned trial judge, confer jurisdiction on a court of equity which will restrain the defendant company from making use of the prints in its business and give such other and adequate relief as the rights of the injured party may require.

The persons, other than the plaintiff and defendant, who may have an interest in the prints are not before the court and are not complaining of the decree. Their right to the property in question may be adjudicated when they invoke the aid of the court for that purpose.

The decree of the court below is affirmed.


source: Caselaw Access Project

author: Mb. Justice Potteb,

license: Public Domain

text:
    Snee v. West Side Belt Railroad Company, Appellant.

      Railroads—Eminent domain—Width of road—Taking land in excess of sixty feet—Necessity—Act of February 19, 1849, sec. 10, P. L. 79.
    A railroad company has no right under section 10 of the act of February 19, 1849, to take land for its right of way in excess of the width of sixty feet for the purpose of diverting and relocating the bed of a stream so that the company may from considerations of convenience or economy, and not from necessity, be relieved from constructing two bridges over the stream in question.
    Argued Nov. 1, 1904.
    Appeal, No. 61, Oct. T., 1904, by defendant, from decree of O. P. No. 2, Allegheny Co., Jan. T., 1903, No. 65, on bill in equity in case of-John A. Snee v. West Side Belt Railroad Company.
    Before Mitchell, C. J., Dean, Fell, Bbown, Mestbezat, Potteb and Thompson, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Fbazeb, P. J.
    The court found the facts to be as follows:
    1. The plaintiff is the owner of a farm situate in Jefferson township, this county, containing eighty-six acres, through a portion of which flows a stream of water known as Peters creek.
    2. The defendant is a corporation created under the general railroad laws of this commonwealth, for the purpose of constructing a railroad from a point on the Monongahela river near the mouth of Peters creek to the city of Pittsburg; that the route of the defendant’s railroad lies across a portion of plaintiff’s farm.
    8. That the defendant company has filed its bond in this court to secure to plaintiff the payment of any damages that may result to him by reason of the construction of its road over and upon his land.
    4. That defendant in constructing its road across plaintiff’s land is obliged to cross Peters creek twice, and also construct an embankment between the banks of the creek at these points, of about 400 feet in length, and nine feet in height; that for the purpose of avoiding the construction of bridges over the creek at each end of the embankment, defendant proposes to create a new channel for the creek along its embankment and over the land of plaintiff, and continue its embankment across the creek’s present bed.
    5. That for the purpose of making the proposed new channel, defendant proposes to take, and is about to take, sufficient land of plaintiff adjoining its right of way; that the strip of ground intended to be taken for both the right of way and new channel is 130 feet in width, and whatever additional grant that may be necessary for slopes and embankments.
    6. That at the point on plaintiff’s land where the route of defendant’s road crosses Peters creek, there is a curve in the channel of the stream, requiring the creek to be crossed twice in a distance of about 500 feet; that by the construction of an embankment along the entire distance, and the changing of the creek’s channel, part of the plaintiff’s land is cut off from the balance of the farm, and deprived of the benefit of the waters of the creek.
    7. That the cost of two iron bridges over the creek at this point would be from $1 8,000 to $20,000 in excess of the cost of an embankment; that while the construction of embankments is desired by railroad engineers in preference to bridges, the latter at this point are practicable and could be constructed so as to be both safe and serviceable.
    8. That the defendant’s road is not now, nor will it be constructed, upon plaintiff’s property at or near the corner where he joins the lands of Alice H. Wilson, nor does it appear from the evidence that defendant is encroaching upon the channel of the creek or changing the same upon plaintiff’s farm, so that injury will result to plaintiff by reason of overflow.
    The court entered a decree perpetually enjoining the defendant from taking complainant’s land for the purpose of changing the channel of Peters creek.

      Error assigned was the decree of the court.

      Johns Me Ctleave, with him J. C. Boyer and John S. Wendt, for appellant.
    We contend, that clearly the right is given to take any land for “ any purpose necessary or useful in the construction of the railroad,” and such has been the interpretation placed upon precisely similar language by this court: Lauderbrun v. Duffy, 2 Pa. 398 : Smithko v. Pittsburg & Western Ry. Co., 5 Pa. Dist. Rep. 543 ; Barclay R. R. & Coal Co. v. Ingham, 36 Pa. 194; Warfel v. Cochran, 34 Pa. 381; Valley Ry. Co. v. Bohn, 34 Ohio, 114; Rowe v. Granite Bridge Corporation, 38 Mass. 344; Bigelow v. Draper, 6 No. Dak. 152 (69 N. W. Repr. 570) ; Mellen v. Western R. R. Corp., 70 Mass. 301; New York & Erie R. R. Co. v. Young, 33 Pa. 175.
    Jt. B. Petty, with him Charles G. Mcllvain and John IF. Badeliffe, for appellee.
    There is no express grant to the defendant which would authorize the taking of the land in excess of sixty feet in the present case: Phillips v. Dunkirk, etc., R. R. Co., 78 Pa. 177; Pittsburg Junction R. R. Co.’s App., 122 Pa. 511; Groff’s App., 128 Pa. 621; Woods v. Greensboro Nat. Gas Co., 204 Pa. 606; Cumberland Valley R. R. Co. v. McLanahan, 59 Pa. 23.
    A railroad corporation has not the right to interrupt or divert the natural flow and course of the water of a stream, to cut it off from those below, or flow it back upon those above their road: Pittsburg, Ft. Wayne, etc., Ry. Co. v. Gilleland, 56 Pa. 445; Brown v. Pine Creek Ry. Co., 183 Pa. 38; Young v. Chicago, etc., Ry. Co., 28 Wis. 171; Stodghill v. C., B. & Q. R. R. Co., 43 Iowa, 26; March v. R. R. Co., 19 N. H. 372; Pugh v. Golden Valley Ry. Co., Law Rep. 15, Chan. Div. 330; Atchison, Topeka, etc., Ry. Co. v. Long, 46 Kansas, 701 (27 Pac. Repr. 182.)
    December 31, 1904:
   Opinion by

Mb. Justice Potteb,

The defendant company is incorporated under the general railroad laws of Pennsylvania, and its authority to take land for its right of way is, therefore, prima facie, limited to a strip sixty feet in width. This limitation prevails except in the neighborhood of deep cuttings, or high embankments, or places selected for sidings, turnouts, depots, engine or water stations. No necessity for extra width, arising under any of the specified exceptions, has been shown in this case. But in crossing plaintiff’s land, the line of the railroad crossed Peters creek twice within a distance of about 460 feet. This would involve the construction of two bridges, and rather than build the bridges, the defendant company sought to divert the waters of Peters creek from their original channel, by building a solid embankment, which would cut off the bend in the creek and send the water along the line of the railroad until it met the old channel. To provide for the flow of the waters in the new location the defendant company proposed to take an additional portion of the plaintiff’s land, outside of the right of way. Counsel for appellant contend that the grant of power in section 10, of the Act of February 19, 1849, P. L. 79 “to enter upon all land on which the said railroad or depots, warehouses, offices, toll houses, engines and water stations, other buildings or appurtenances, hereinbefore mentioned, may be located, or which may be necessary or convenient for the erection of the same, or for any purpose necessary or useful in the construction, maintenance or repairs of said railroad, and therein and thereon to dig .... and construct the same,” confers the right to take any land, for any purpose necessary or useful in the construction, maintenance or repairs of said railroad. This is a very bold claim, and one which is without any justification in the terms of the act. It ignores the express limitation of the width of the right of way except in the specified exceptions. The entry upon land is limited to such land as the railroad was entitled to include in its right of way, and this in so far as the main roadbed is concerned is not to exceed sixty feet in width. To adopt the construction contended for by the appellant would practically nullify the limitation of the width of the right of way. The learned judge of the court of common pleas has found that there is no impelling necessity in this case for changing the channel of the creek, and for that purpose taking additional, land. It is a mere matter of convenience or, at most, of economy. This is not enough. As we held in Penna. R. R. Co.’s Appeal, 93 Pa. 150, there can be no implication in favor of the right of eminent domain “ unless it arises from a necessity so absolute that, without it, the grant itself will be defeated. It must, also, be a necessity that arises from the very nature of tilings, over which the corporation has no control; it must not be a necessity created by the company itself, for its own convenience or for the sake of economy.”

See also upon this point, Woods v. Greensboro Natural Gas Co., 204 Pa. 606, and the cases there cited. The trial judge has found as a fact that “ while the construction of the embankments is desired by railroad engineers in preference to bridges, the latter at this point are practicable and could be constructed so as to be both safe and serviceable,” and this finding is amply supported by the testimony. In stating his conclusions of law, the court below said: “ While a railroad company in the construction of its road has not generally the right to divert the natural flow of waters of the stream, yet there may be cases when that may be done. If a company should find it impracticable to carry out the purpose of its incorporation without changing the channel of the stream in constructing its road, perhaps upon those circumstances being made to appear private interest would be required to yield to the interests of the public. We, however, have no such a case before us.” We think the conclusion thus stated is fully sustained by the authorities. See Angell on Water Courses, sec. 465b; Gould on Waters, page 522; Lewis on Eminent Domain, sec. 571.

The assignments of error are overruled. The decree of the court below is affirmed, and this appeal is dismissed at the cost of the appellant.


author: Mb. Justice Dean,

text:
    Wilson v. Philadelphia Company, Appellant.

      Oil and gas leases—Rental—Abandonment—Notice.

    When the right of possession for operating purposes has been acquired Under an oil and gas lease, by a successful search for the product, the lessee becomes answerable for the stipulated rental according to the terms of the agreement and is relieved of that liability only by showing payment, or notice to the lessor, either written or verbal, of abandonment. This is a wholesome rule tending to promote certainty in the determination of disputes in this class of contracts: Double v. Union Heat & Light Co., 172 Pa. 388, approved and followed.
    Argued Nov. 1, 1904.
    Appeal, No. 67, Oct. T., 1904, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1901, No. 25, on verdict for plaintiffs incase of Annie Wilson et al. v. Philadelphia Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.

      Assumpsit on an oil and. gas lease. Before Collier, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Defendant offered the following points :
    1. That if the jury find from the evidence that the defendant permanently ceased to use these wells as gas wells, on account of the failure of those wells to produce gas, then the plaintiffs are entitled to recover only the rent of those wells for the years up to and including the time when those wells were abandoned. Answer: Refused. [1]
    2. That if the jury find that the defendant permanently ceased to use these wells as gas wells, notice to the plaintiffs of such abandonment was unnecessary, and the defendant was not liable for any rental for the years following such abandonment. Answer: Refused. [2]
    3. That if the jury find that the defendant permanently ceased the use of well No. 777 as a gas well before April 14, 1899, and permanently ceased the use of well No. 778 as a gas well, before November 16, 1899, then they should find for the plaintiffs a verdict in the sum of $250, with interest from November 16, 1899, and no more. Answer: Refused. [3]
    4. That under all the evidence in this case the verdict should be for the plaintiffs for $250, with interest from November 16, 1899, and no more. Answer: Refused. [4]
    The court charged in part as follows :
    [You will remember the lease was not for the whole farm; it was only for the wells. You heard what one witness said, that she understood, or she knew, they had disconnected the wells, but it must be more than that. I say to you that you should find for the plaintiffs the amount of their claim unless you are satisfied that the plaintiffs, or anyone of them, got notice that the gas was giving out, was getting so weak that it was no use, and that the defendant abandoned the whole thing. If you do not find that, you should find for the plaintiffs. It was not necessary that the notice of the surrender of the lease should be in writing; it could be done by word of mouth, by telling them. If you find that it was abandoned and notice was given, then you should still find for the plaintiffs in the sum of $250, with interest, because that is the amount admitted to be due in any event.] [5]

      Verdict and judgment for plaintiff for $1,769.48. Defendant appealed.

      Errors assigned were (1-5) above instructions, quoting- them.

      David A. Meed of Meed, Smith, Shaw Beal, for appellant.
    The royalty ceased when the gas ceased: Williams v. Guffy, 178 Pa. 342; Boyer v. Fulmer, 176 Pa. 282; McConnell v. Lawrence County Gas Co., 47 Pittsburg Leg. Journ. 346.
    Surrender of the lease was unnecessary : Venture Oil Co. v. Fretts, 152 Pa. 451; Cole v. Taylor, 8 Pa. Superior Ct. 19.

      Frank C. McGtirr, with him John Marrón, for appellees.
    Plaintiffs were entitled to notice of abandonment: Double v. Union Heat & Light Co., 172 Pa. 388; Nesbit v. Godfrey, 155 Pa. 251.
    December 31, 1904:
   Opinion by

Mb. Justice Dean,

This suit was to enforce payment of the consideration which defendant agreed to pay plaintiffs for an oil and gas lease of fifty-eight acres of land in Allegheny county. The term of the lease was fifteen years and so much longer as oil and gas could be produced in paying quantities. As no oil was found we need not concern ourselves with the stipulations as to oil. Gas was found and this dispute is concerning the rights and liabilities of the parties in reference to that product. The party of the second part was to commence drilling within three months; if gas was found in paying quantities the consideration in full was to be $500 per annum for the gas from each well when utilized; it further agreed that on the completion of the first well, the party of the second part was to have a lease of the remainder of the farm on payment of a bonus of $600; it was further agreed that the party of the second part should have the right at any time to surrender the lease and be released from all moneys due and conditions unfulfilled; then from that time the lease was to be null and void and no longer binding on either party.

The .Philadelphia company drilled two wells, one November 15, 1895, No. 778, the other April 15, 1896, No. 777. Both wells at first produced gas, which defendant utilized, and for each of these for the first year defendant was bound to pay by the agreement $500. The defendant paid the rental on this well and for the succeeding years up to and including the year 1898. On No. 777 it ¡raid the rental up to and including tiie year 1899. As the flow of gas was diminishing, by supplemental agreements plaintiffs reduced the rentals on both wells, that of 778 to $250 per year commencing November 15, 1898 and that on 777 to $250, and then a further reduction on 777 was made to $150 per year beginning April 15,1897. The agreement for this last reduction gave to defendant the right to surrender the lease at any time.

This suit was brought June 5, 1901; the plaintiffs in their statement then claimed there was due them from defendant, for one well, two years and six months’ rent, and for the other three years and six months’ rent. There was no dispute at the trial as to the amount recoverable by plaintiffs if they were entitled to recover at all more than $250, which defendant admitted to be due and had tendered to plaintiffs; the entire dispute then turned on whether the lease had been abandoned by defendant when as it is alleged gas had ceased to flow in paying quantity and it had, therefore, ceased to utilize it. The learned trial judge, adopting in substance our opinion in Double v. Union Heat and Light Co., 172 Pa. 388 as the law of the case, left the evidence of abandonment to the jury on that question, almost, however, if not altogether, instructing them to find for plaintiffs which the jury promptly did.

The learned counsel for appellant has preferred five specifications of error. The substance of the complaint is this language of the court iu its instructions to the jury: “I say to you that you should find for the plaintiffs the amount of their claim unless you are satisfied that the plaintiffs, or any one of them, got notice that the gas was giving out, was getting so weak that it was no use, and that defendant abandoned the whole thing.”

The idea conveyed to the jury by this instruction is in exact accord with the decision in the Double case already noticed; the lease in this case is almost exactly the one in the Double case. The evidence in this case tending to show surrender of the lease or notice that it was abandoned scarcely amounted to a scintilla. It was strong, that the defendant because of unproductiveness liad ceased to operate the wells, and as to one well had actuality disconnected its pipes and drawn the casing; but it had not surrendered the lease nor had it given written or verbal notice of abandonment. By the written contract it was entitled to a restricted possession of plaintiffs’ land for gas purposes. This excluded plaintiffs or other lessees from an occupancy for the same purpose until the company under their contract gave them notice they had abandoned this right of restricted possession. If plaintiffs had disturbed this possession they were answerable to defendant as trespassers if it so chose to regard them. The Double case only followed Nesbit v. Godfrey, 155 Pa. 251. The case is very meagerly- reported. The question raised is not exactly the same on the facts while the written lease is substantially the same. The rental there was 175.00 per year; the defendant notified plaintiff the day after one year had elapsed, that they elected to terminate the lease; it was held this was too late for them to escape the second year’s payment; that the law would not divide the contract period by which the rental was fixed into fractions measured by the date of the notice. But the necessity of notice was conceded by both sides and recognized by the court below and by this court.

While the numerous decisions of these oil and gas contracts are sometimes apparently inconsistent, yet they have always, in the view of this court, harmonized. The industry of the learned counsel for appellant has pointed out to us several cases which apparently are in conflict with the Double case, but when closely examined they do not conflict with that ruling. In Williams v. Guffy, 178 Pa. 342 the annual payment was to be f500 for each well, with the right to abandon in case the gas ceased to flow in sufficient quantity to be utilized. On suit by the lessors for rent, defendant averred that the lease had been actually abandoned. The character of the evidence necessary to establish the fact of abandonment, whether by notice or unequivocal acts, was not even raised in this court, which confirmed the judgment in a per curiam opinion. We have no doubt, if the question had been raised here, we would have ruled it on the authority of the Double case, which was decided in a carefully considered opinion only the year before. Neither was the point raised in McConnell v. Lawrence County Gas Co., 47 P. L. J. 346. In Venture Oil Co. v. Fretts, 152 Pa. 451, although the lease was much like the one before us, it was an oil lease and a test well was to be sunk. It was sunk and no oil found; thereupon the lessee abandoned the land. Seven years afterwards the owner again leased the land and the first lessee brought ejectment. It was argued by plaintiff, that no presumption of abandonment arose from the mere cessation of active operations for seven years and that his interest in the land remained in the absence of formal surrender or abandonment and his right to possession was not lost. The court said no; that a perfect title under the lease which existed until formal notice of abandonment was shown, had not been acquired by the lessee; that the right became fixed only when the result of the test well demonstrated the existence of oil in paying quantities ; that no oil having been found, and the lessee having thereupon left the land, that was notice enough of the end of his right under the lease.

To the same effect is McNish v. Stone reported in a note to Venture Oil Co. v. Fretts, 152 Pa. 451, but not regularly reported, in which the court on similar facts held, that the right of search under the contract was one thing and the right to operate for a period of years another; that if the search is successful then the right of extended possession accrues, which can only be lost by notice of abandonment; but the right of possession to search is gone when the search proves fruitless and so with all the eases cited by appellant’s able counsel. When closely examined, they will be found not to trench one iota on the doctrine laid down in the Double case and we unhesitatingly adhere to it. We again say that when the right of possession for operating purposes has been acquired, as here, by a successful search for the product, the lessee becomes answerable for the stipulated rental according to the terms of the agreement and is relieved of that liability only by showing payment, or notice to the lessor, either written or verbal, of abandonment. As neither was shown in this case, we decline to disturb the verdict. And it is a wholesome rule tending to promote certainty in the determination of disputes in this class of contracts.

All the assignments of error are overruled and the judgment is affirmed.


author: Mil Chief Justice Mitchell,

text:
    Philadelphia Company’s Petition.

      Constitutional law—Title of statute—Local and special legislation—Judicial proceedings—Uniformity—Act of July 9, 1897, P. L. 219—Taxation.

    The Act of July 9, 1897, P. L. 219, entitled “An act to provide for the classification of real estate and other property for purposes of taxation and for the election of assessors and for prescribing the duties thereof in cities of the second class,” is not unconstitutional, as either defective in title, or as local or special legislation, or as violating sec. 26, article 5 of the constitution which provides that “all laws relating to courts shall be general and of uniform operation.”

      Taxation—Appeals—Act of July 9, 1897, P. L. 219.
    Where a corporation assessed for taxation of its real estate under the Act of July 9, 1897, P. L. 219, has failed to exercise its right to appeal to the board of assessors, it cannot appeal to the court of common pleas.
    Argued Nov. 2, 1904.
    Appeal, No. 140, Oct. T., 1904, by Philadelphia Company, from order of C. P. No. 1, Allegheny Co., March T., 1904, No. 649, to strike off appeal from Board of Assessors In re Petition of Philadelphia Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat and Thompson, JJ.
    Affirmed.
    Rule to strike off appeal from the board of assessors. Before Macearlane, J.
    From the record it appeared that the Philadelphia Company presented its petition to the court of common pleas setting forth that the board of assessors of the city of Allegheny had assessed its real estate in the ninth ward of said city at the sum of $1,019,450, which was excessive, unreasonable and beyond its fair valuation, and prayed that it be permitted to appeal therefrom. The petition was presented under the act of assembly entitled “ An Act authorizing appeals from assessments of taxes in this commonwealth to the court of common pleas,” approved April 19, 1889, P. L. 87. It was presented and an appeal allowed within sixty days after final action by the board of assessors. The city of Allegheny presented its petition praying for rule on the appellant to show cause why said appeal should not be stricken off for the reason (a) that no appeal was taken to the board of assessors; and (&) no appeal was taken within thirty days, as required by the Act of July 9, 1897, P. L. 219. To the petition of the city of Aliegheny, the appellant filed an answer averring that so much of the act of 1897 as related to appeals was unconstitutional, and that the board of assessors had not given due notice, either to the appellant, its agent, or the occupiers of the land assessed, of the date of appeal or of its final action. On June 22, 1904, the court below made the rule to strike off the appeal absolute, and filed an opinion saying, while it was doubtful whether the title of the act of 1897 was sufficient to give notice of the provision that an appeal was to be taken within thirty days to the court of common pleas, yet, as the appellant had failed to exercise its right to appeal to the board of assessors, it could not be allowed to appeal to the court of common pleas.

      Error assigned was the order of the court.

      Samuel Me Clay, with him .Reed, Smith, Shaw ¿f* Beal, for appellant.
    There is no notice in the title of the act of 1897 of any provision for an appeal: Com. ex rel. v. Samuels, 163 Pa. 283; Phœnixville Road, 109 Pa. 44; Otto Twp., 2 Pa. Superior Ct. 20 ; Ruan Street, 132 Pa. 257 ; Scranton City v. Silkman, 113 Pa. 191.
    There was no notice as required by law to either appellant, its agent, or occupier.
    The appeal to the board of assessors from their assessment is not a condition precedent to the appeal to the court of common pleas.

      Stephen Gr. Porter, city solicitor, with him W. W. Stoner, and Craig Smith, for appellee.
    The act is constitutional: Bruce et al. v. City of Pittsburg, 166 Pa. 152; Wheeler v. Philadelphia, 77 Pa. 338 ; Kilgore v. Magee, 85 Pa. 401; McGee’s App., 114 Pa. 470; Dewhurst v. Allegheny, 95 Pa. 437; Omega Street, 152 Pa. 129; Scranton v. Davidson, 3 Lackawanna Jurist, 141; Rhoads v. Phila., 2 Phila. 149.
    December 31, 1904:
   Opinion by

Mil Chief Justice Mitchell,

The appeal from the assessment to the court below was admittedly too late under the terms of the Act of July 9, 1897, P. L. 219, which by the proviso to section 2 require that “ such appeals shall be taken to such court within thirty days after final action by the assessors as aforesaid.”. It is objected, however, that this proviso is unconstitutional, because (A) the subject of appeals is not expressed in the title of the act; (6) it is a local or special law regulating practice and jurisdiction in a judicial proceeding, and (c) it violates section 26 of article 5 that “ all laws relating to courts shall be general and of uniform operation, and the organization jurisdiction and powers of all courts of the same class or grade so far as regulated by law .... shall be uniform.”

None of these objections can be sustained. The title of the act of 1897 is “ An act to provide for the classification of real estate and other property for purposes of taxation and for the election of assessors and prescribing the duties thereof in cities of the second class.” This is clear notice of the entire subject of the classification and assessment of property for taxation, and any provision relative to the mode of proceeding, the effect of the assessment, or the finality of the assessor’s action is germane to the subject and within the notice required of the title.

Secondly the act is neither local nor special. It is upon a subject of municipal government within the reasons of classification, and it applies to all members of the class. Bruce v. Pittsburg, 166 Pa. 152.

Thirdly, the act is not a regulation of jurisdiction or practice of any court. Assessment of property for taxation is not inherently a judicial proceeding. The state exercises its powers in that regard according to its necessities and its own will as determined by the legislature, without regard to the tribunals for adjustment of disputed rights between citizens. An appeal is not of course. What appeals shall be allowed, in what manner they shall be taken or conducted, and what shall be their effect are matters regulated by statutory provision which must affirmatively appear. Thus in the Act of April 19, 1889, P. L. 87, the appeal is allowed only if taken within sixty days, and does not stop the collection of the tax appealed from, but only entitles the successful appellant to have the excess returned. That act was held to be constitutional in Rockhill Iron and Coal Co. v. Fulton County, 204 Pa. 44. The prescribing of a different time within which appeals may be taken from a first ex parte assessment and those from a board of assessment on a rehearing, is not a regulation of the jurisdiction of the tribunal, but of the necessary-proceeding to be followed by the party invoking it, and is no different in principle from statutes prescribing different periods of limitation for actions of tort and assumpsit.

No valid objection has been shown to the constitutionality of the proviso. But even if the appeal had been in time it would have been ineffectual as it was not from the final action of the board as provided by the statute. The board is required to establish “ rules and regulations prescribing the mode of appeal to them from any assessment made by them, by any person interested therein, aud when such assessors shall have finally acted upon such assessments and appeals, an appeal may be taken therefrom to any court of common pleas of the county in which such city is located.” The assessment in the first instance is made ex parte and the appeal from that is not to the court but to the board of assessors. The appeal is “ to them from any assessment made by them ” and it is only when they “ have finally acted upon such assessments and appeals ” that an appeal may be taken to the court of common pleas. The act clearly intends to give the board an opportunity to review their own first assessment and “ rectify all errors,” after hearing the party complaining, and to subject only their final action to an appeal to court. It is analogous to proceedings on a compulsory nonsuit, the nonsuit itself not being subject to appeal, but only the refusal of the court in banc to take it off.

This was the ground on which the learned court below dismissed the appeal.

Judgment affirmed.


author: Mb. Chi ef Justice Mitchell,

text:
    Brown's Estate
    (No. 1).

      Decedent’s estates—Claim for money received by decedent—Evidence.

    At the audit of an executor’s account a claim was presented for a one-half interest in certain shares of stock. The claimant had been the decedent’s stenographer, but had left his employment about two years prior to his death, although she continued to do some occasional work for him. After his death she took charge of his papers and personal effects, and claimed his furniture by virtue of a bill of sale which he had made to her. She surrendered most of the papers to the executrix, keeping some as to which she had been notified by an attorney not to give up, as they related to a claim of partnership by a third person against the decedent. The evidence showed that at various times she had given the decedent checks out of her own bank account aggregating about $10,000. These checks and their stubs had words written on them connecting them with the stock in controversy. There was some evidence that these words were not written with the same pen and with the same ink as the body of the check, and that the stubs were in pencil while the checks were in ink. Several witnesses swore to conversations in which' the decedent had admitted the claimant’s joint ownership of the stock, consulted her about what should be done with it, advised her not to sell, though she wanted to while it was going up in price, and added up the profits showing half of them to be hers. There was evidence that the aggregate amount of the payments fell somewhat short of the price paid for one half of the stock, and that claimant’s payments did not correspond in time and amount with decedent’s payments for the stock, but there was no evidence that the payments had been made for any other purpose than the purchase of the stock. There was evidence that the deceased treated the stock as his own and borrowed money on it, but this course of business was not unusual with him. It also appeared that three other women and one man had given money to the decedent to invest under circumstances somewhat similar to those of the claimant, and that the claims of these persons had been allowed. Held (1) that the circumstances did not establish any such confidential relation as to require of claimant a higher measure of proof than in ordinary cases; (2) that the claim should have been allowed.
    Fell and Bbown, JJ., dissent on 2.
    Argued Nov. 2, 1904.
    Appeal, No. 189, Oct. T., 1904, by Nattie W. McLean, from decree of O. C. Allegheny Co., May Term, 1904, No. 54, dismissing exceptions to adjudication in Estate of Joseph O. Brown, deceased.
    Before Mitchell, C. J., Dean, Fell, Bbo'wn, Mestbezat and Thompson, JJ.
    Reversed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to adjudication.

      Clarence Burleigh, of Burleigh, Cray Challener, with him B. T. Watson and Edmond Englert, for appellant.

      Wm. B. Rodgers, with him J. Rodgers McCreery, for appellee.

      December 31, 1904:
   Opinion by

Mb. Chi ef Justice Mitchell,

Appellant’s claim is for a joint ownership with the decedent, to the extent of one half, in certain shares of stock of the Colonial Trust Company. The evidence as to the relation of the parties was that appellant had been stenographer for the decedent, but had left his employment about two years prior to his death though she continued to do some occasional work for him, as he was a boarder in her mother’s house. He died suddenly in March, 1903, and appellant appears to have taken charge of his papers and personal effects, including his watch, and the furniture of his room, which she claimed as hers by virtue of a bill of sale. The making of such bill by him does not seem to have been denied. There was some evidence as to the destruction by her of some of his papers, and as to failure to produce others. As to these points the' learned judge below considered her testimony somewhat conflicting, and accordingly concluded that “ In view of the confidential relation in which this claimant stood to Mr. Brown, the advantage which she has had in the possession of his papers and the suspicion of intentional concealment to which her conduct has given rise, it is very plain that a highermeasure of proof ought to be required than in ordinary cases.”

In this view we are unable to concur. There is no evidence from which any confidential relation can be inferred which bears in any way on the present claim. Though as stenographer appellant may have been intrusted with confidential matters, there is no evidence at all that they in any way concerned the present claim or her personal interests, or were other than pertained to her duties as stenographer. She was an employee and the transfer by her of large sums of money to her employer was certainly not evidence of her seeking to profit by a confidential position. The natural inference would be the other way.

With regard to the matters of “the advantage she had in the possession of his papers, and the suspicion of intentional concealment to which her conduct has given rise,” it is to be said first that no suggestion has been made as to wherein any such advantage would accrue to her either from possession of the papers or from the suspected concealment, and, secondly, that the facts shown by the .evidence do not bear out at all clearly the unfavorable inference. Upon demand, shortly after his death, appellant turned over a large quantity of books and papers of the decedent to his executrix the only reservation of any moment shown being in the case of papers relating to a certain coal and lumber company as to which appellant had been notified by an attorney of a claim of partnership and warned not to let them go out of her possession. Appellant’s explanation of her- conduct in regard to decedent’s papers was plausible even if not entirely satisfactory, and the inference of advantage or intentional concealment cannot fairly be said to rest on anything stronger than suspicion. The learned judge was therefore in error in requiring of the appellant a higher degree of proof than in ordinary cases.

The burden of proof of her claim, however, was upon the appellant. In support of it she produced six checks for various sums amounting in all approximately though not exactly to one half the purchase money of the stock now in controversy. They were drawn by appellant upon her private bank account to tbe order of decedent, and indorsed by him. That they represented money given to him by her is not contested, and she showed that the money was in her own name and her own bank account. Each of the checks had the word “ Colonial ” written diagonally across the left upper corner, and the stubs were marked “Colonial Stock Acct.,” “for Colonial Trust Stock,” “payment on Colonial Stocks,” “Colonial Stock settlement,” etc. These checks and stubs were offered as direct evidence of the payment of the money on account of the colonial trust stock. In further support of this point appellant produced witnesses who swore to conversations in which the decedent had admitted appellant’s joint ownership of the stock, consulted her about what should be done with it, advised her not to sell, though she wanted to while it was going up in price, and added up the profits showing half of them to be hers.

Against this prima facie case it was pointed out that the purchase of the stock had been made by decedent in his own name more than a year before his death, that no written evidence-was produced from his books or papers showing any recognition of the claim now asserted and that in his dealings with it he treated the stock as his own, borrowing on it at three different dates amounts aggregating somewhat more than the entire purchase money. In regard to the checks and stubs it was objected that neither in dates nor amounts did they correspond with the payments made by decedent on the stock; that there was expert evidence that the word “ Colonial ” on the checks was not written with the same pen and the same ink as the body of the checks ; that the stubs were in pencil while the checks were in ink; and that three of the chocks were printed by a different firm from that printing the stubs from which they professed to be torn. On this branch of the case the court found that there were irregularities that called for explanation but were not explained, and therefore that “ proof of the connection of these checks with the purchase of colonial stock has failed; and they must relate to other transactions between Brown and McLean which are admitted to have taken place.”

On this branch of the case the evidence is so much in equilibrio that we should hesitate to come to a different conclusion from the court below. The testimony of the witnesses as to decedent’s admissions of appellant’s joint ownership is not so easily disposed of. The court below sum it up by saying that “ Conceding the story to be true it amounts to no more than evidence of a promise of gratuity which is incapable of enforcement.” We do not think this a correct view. A promise of gratuity on which .110,000, nearly the whole value, is paid by promisee is much more than a naked promise which the law will not enforce. But the testimony itself is to much more than a promise, it is to repeated and positive admissions of appellant’s joint rights in the stock. It is uncontradicted and notwithstanding the interest of the witnesses, one a sister and another a nephew of the appellant, the court does not find it unworthy of belief. If true it makes out the claimant’s case.

The want of coincidence in dates between the checks and Brown’s payments on the stock loses much of its significance in view of the fact that his purchase was paid for in installments and appellant’s contributions, if for this purpose, were likewise in installments. And for the same reason the deficiency in the aggregate amount of the checks, compared with half the purchase price, may merely show that there is a balanee of some hundred dollars due by appellant on her payments.

Further the conduct of decedent in treating the stock as his own, and the absence of any written evidence by him of recognition of appellant’s joint ownership are shown by the evidence in this same audit of his estate to be not unusual in his unsystematic method of doing business.

Three women presented claims for money given to Brown to invest under circumstances somewhat similar to those of appellant, and the claims were allowed, and the claim of one man, Ó’Mara, of the same general character, was allowed on the testimony of present appellant and her sister, the principal witness in regard to Brown’s admissions.

On the whole case Ave must start with the uncontested fact that appellant gave the decedent ten thousand and odd dollars, and the crucial question meets us at every point, what for ? There is no suggestion that it was in payment of any debt to him, nor that it was not her own money. Her claim is that it was for the purchase from him of a half interest in this stock. The checks by which the money Avas passed over approximated quite nearly to the required aggregate; they Avere given during or shortly following the period he was making his own payments for the stock; and there was positive and uncontradicted testimony by two witnesses that Brown repeatedly admitted appellant’s title to one half the stock. On the other hand, the argument is made of the want of correspondence between the checks and Brown’s payments for the stock, both as to dates and amounts; the discrepancies as to the stubs; and the natural bias of the witnesses as well as the unsatisfactory character of their testimony. All this is merely criticism of the appellant’s evidence, forcible as far as it goes, but how does it meet the vital and constantly recurring question, what was the money given to Brown for? The only answer suggested is the conjecture that it was for some other transaction, the date, amount and character of which are not even suggested in the eAÚdence.

If this case were before a jury it is hardly open to doubt that they would and probably ought to render a verdict for the plaintiff, and under the evidence the court should take the same view.

Decree reversed and claim directed to he allowed.

Fell and Biíoavn, JJ., dissent, as to the allowance of the claim.


author: Per Curiam,

text:
    Brown's Estate
    (No. 2).

      Decedent’s estates—Claim for money had and received—Evidence—Burden of proof.

    Where it is shown that a decedent received money from a claimant either as a loan or for purpose of investment for claimant, the burden is upon his representatives to show either payment or an accounting.
    Argued Nov. 2, 1904.
    Appeal, No. 193, Oct. T., 1904, by Ella M. Brown, from decree of O. C. Allegheny Co., May T., 1904, No. 54, sustaining exceptions to adjudication in Estate of Joseph O. Brown, deceased.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat and Thompson, JJ.
    Affirmed.
    Exceptions to adjudication.
    At the audit it was shown that shortly before decedent’s death Mrs. Bessie Craft gave to the decedent $2,000, of which sum $500 was returned before the decedent died. The executrix claimed that the money had been given to the decedent for investment. The auditing judge refused to allow the claim, but on exceptions the claimant was permitted to file a sworn statement that no repayment had been made. The claim was then allowed.

      Error assigned was in sustaining the exceptions.

      J. Rodgers McCreery, with him W. B. Rodgers, for appellant.

      Walter Lyon of Ljyon, McKee Mitchell, for appellee.
    December 31, 1904 :
   Per Curiam,

The evidence is clear and the court has found it to be credible, that the decedent received the money from the claimant either as a loan or for purpose of investment for her. He was therefore charged with the burden of showing either payment or an accounting. His sudden death left the matter in obscurity but the burden of proof was still upon his representatives and they have failed to meet it.

Decree affirmed,


author: Mb. Justice Thompson,

text:
    Snyder, Appellant, v. Baltimore & Ohio Railroad Company.

      Railroads—Eminent domain—Widening road—Taking of dwelling house— Lease—Act of March 17, 1869, P. L. 12.
    Where by reason of increased business it becomes necessary for a railroad company to widen its roadbed for additional tracks, the company in widening its road may condemn a dwelling house. This right is not affected by the fact that the company has leased its road to another company, and that the widening operates for the benefit of the lessee.
    Argued Nov. 2, 1904.
    Appeal, No. 197, Oct. T., 1904, by plaintiff:, from decree of C. P. No. 1, Allegheny Co., March Term, 1908, No. 204, dismissing bill in equity in case of Mary C. Snyder and Lyda Dellnora Snyder v. Baltimore & Ohio Railroad Company, the Pittsburg & Connellsville Railroad Company and the Glenwood Railroad Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat and Thompson, JJ.
    Affirmed.
    Bill in equity for an injunction. Before MACFARLANE, J.
    From the record it appeared that the' Glenwood Railroad Company, a corporation organized under the general railroad act of April 4, 1868, leased its road to the Pittsburg & Connellsville Railroad Company, a corporation chartered by the state of Pennsylvania on April 3, 1837, and that the latter company leased its property to the Baltimore & Ohio Railroad Company, a corporation of the state of Maryland. In 1903, the Glenwood Railroad Company instituted proceedings to condemn plaintiff’s land, including a dwelling house, for the purpose of widening its road. Macearlane, J., found, inter alia, the following facts:
    11. Since the time of its completion, the Glenwood Railroad Company has maintained a series of railroad sidings, known as a yard, extending from a point on Elizabeth street to Vespueius street, said tracks being used for the purpose of receiving and storing cars coming to the Glenwood Railroad at either end, making up trains and dispatching them to their points of destination.
    12. The business done over the Glenwood Railroad has, in the last year, so largely Increased, that the sidings so used have become entirely insufficient to handle with convenience and dispatch the number of cars daily received, and upon September 17, 1902, the board of directors of the Glenwood Railroad Company regularly adopted the following resolutions :
    “ Resolved, that in order to accomodate the business of this company, it is necessary to construct yard tracks and railroad sidings, roundhouse, trestle and shops at Glenwood, twenty-third ward, city of Pittsburg, and for such purpose to appropriate and acquire all the property lying between Vespucius street and Allegheny street, and between Gloster street and. Lytle street. Be it further
    “ Resolved, that the location of the said railroad sidings, roundhouse and other improvements, as shown by the survey and plan thereof made by the engineer of this company, and herewith submitted as part of this resolution, be, and the same is hereby adopted and approved. Be it further
    “ Resolved that the proper officers of this company are hereby authorized and instructed to acquire all the land necessary for the construction of said improvements, either by voluntary purchase, or, if necessary, by condemnation, in accordance with the charter of this company, and that they proceed immediately with the construction of said improvements.”
    13. The property of the plaintiffs above described, lying within the space described in the said resolution, was appropriated by the Glenwood Railroad Company for the purposes therein mentioned, and said lots will be occupied by railroad tracks or sidings used for the purpose of storing cars while not in use.
    14. Such additional tracks as the Glenwood Railroad Company proposes to build are, in the judgment of the board of directors, necessary to increase the facilities for transportation over the Glenwood Railroad Company, and are, as a fact, so necessary.
    15. The Glenwood Railroad Company has acquired by purchase, or by the exercise of eminent domain, all the property lying between the original main tracks of its railroad, and Gloster street, and between Vespucius street and Allegheny street, excepting only two or three small lots, for which negotiations to purchase have not yet been concluded.

      16. The Glenwood Railroad Company was incorporated for the purpose of constructing the railroad described in its charter, in order to assist the Baltimore & Ohio Railroad Company, as the lessee of the Pittsburg & Connellsville Railroad, in the transportation of traffic coming to the Pittsburg & Connellsville at Glenwood, the eastern terminus of the Glenwood Railroad, and at Laughlin Junction, the western terminus of the Glenwood Railroad, between the said points ; and the Baltimore and Ohio Railroad Company loaned to the Glenwood Railroad Company the funds necessary to construct the said railroad and its various appurtenances.
    CONCLUSIONS OP LAW.
    1. The Glenwood Railroad Company has the right to appropriate the property of the plaintiffs for the purpose of widening and otherwise improving its lines, and the directors having determined that the proposed improvements are a necessity, and as they are in fact a necessity for the increased traffic over its lines, bond having been given in condemnation proceedings, the plaintiffs have no standing to object.
    2. Dwelling house property in the occupancy of the owner may be appropriated by the Glenwood Railroad Company for the purpose of widening and improving its lines.
    3. Neither the Baltimore & Ohio Railroad Company nor the Pittsburg & Connellsville Railroad Company is about to take, nor have either taken, the property of the plaintiff.
    4. The injunction prayed for is refused, and the bill is dismissed at the cost of the plaintiffs.

      Error assigned was decree dismissing the bill.

      Levi Bird Duff., with him John F. Edmundson, for appellants.
    The case is not controlled by Glaser v. Railway Co., 208 Pa. 328. It is established by the bill, answer and proofs in this case that the appropriation of plaintiffs’ property by the Glen-wood Railroad Company was solely for the benefit of the Baltimore & Ohio Railroad Company.
    After the lease, the lessor company would still exist, but it would cease to need additional tracks and facilities, and if it continued to exercise the right of eminent domain, it would be exercised for the benefit of the lessee, in this case a foreign company: St. Louis & San Francisco R. R. Co. v. Foltz, 52 Fed. Repr. 627; Koenig v. C., B. & Q. R. R. Co., 27 Neb. 699 (43 N. W. Repr. 423).
    The special charter of the Pittsburg & Connellsville Railway Company, section 8, Act of April 3, 1837, P. L. 185, contains this provision: “ Said railroad company shall not pass through or over any burial ground or ground belonging to any place of public worship intended for that purpose, or any dwelling house without the consent of the owner thereof.”
    In Dryden v. Railway Co., 208 Pa. 316, it is held that the Act of February 19,1849, P. L. 79, exempting dwelling houses in the occupancy of its owners is not to be read into the Act of March 17, 1869, P. L. 12, authorizing the widening of railroad lines. Does the act of 1869 repeal the special provisions of the Act of April 3, 1837, P. L. 185, incorporating the Pitts-burg & Connellsville Railroad? There is no express repeal. Nor is there repeal by implication. Such repeals are not favored and are not allowed, except in cases of strong repugnancy or irreconcilable inconsistency: Harrisburg v. Sheck, 104 Pa. 53; Wright v. Vickers, 81 Pa. 122; In Re Barber’s Election, 86 Pa. 392.

      Johns Mo Cleave, with him John S. Wendt, for appellees.
    So far as the appellants undertake to question the legal powers of the Glenwood Railroad Company, becausé of the manner of its incorporation, the contention is disposed of by the decision of this court in Windsor Glass Co. v. Carnegie Co., 204 Pa. 459.
    The whole of the contention attempted in the present case was heard and disposed of in the case of Market Co. v. Philadelphia & Reading Terminal Co., 142 Pa. 580.
    The fact that the Baltimore & Ohio Railroad Company owns all the stock of the Glenwood Railroad Company does not make it and the Glenwood Railroad Company one and the same party, nor destroy the identity or separate existence and powers of the Glenwood Railroad Company: Rhawn v. Edge Hill Furnace Co., 201 Pa. 637.
    December 31, 1904:
   Opinion by

Mb. Justice Thompson,

The Glenwood Railroad Company, one of the appellees by resolution of its board of directors duly adopted, resolved that the location of the sidings of their railroad, roundhouse and other improvements in the plan submitted by its chief engineer be approved and that the proper officers be authorized to take steps to appropriate and condemn the property necessary for such sidings and improvements. The dwelling houses of the appellants were appropriated under this resolution and by bill filed in this case they sought by injunction to restrain appellees from taking and condemning the same.

The learned trial judge finds as a fact that the proposed tracks and improvements were in the judgment of the board of directors of that company necessary to increase the facilities for transportation over its railroad. He also found as a fact that they were so necessary. He further found that “ The Glenwood Railroad Company is a corporation of the state of Pennsylvania, created and organized under the provisions of an act of the general assembly of the said state entitled ‘An act to authorize the formation and regulation of railroad corporations ’ approved April 4, 1868, P. L. 62., and the several supplements thereto, and is possessed of all the franchises and powers conferred by said acts, and particularly by the act entitled ‘ An act to enable railroad, canal and slack water navigation companies to straighten, widen, deepen or otherwise improve their lines of railroad, canals and slack water navigation, and the bridges, aqueducts, piers and structures thereof,’ approved March 17, 1869, P. L. 12.” Thus the incorporation of that company, its organization, its franchises and powers to conduct business and to widen and improve under the act of March 17, 1869, are distinctly established. Owing to the exigency arising from increase in population and a consequent enlargement of business the act of 1869 was intended to remove from railroad companies when the necessity of enlargement or improvement arose, the restriction as to dwelling houses contained in the general railroad act of 1849.

In the case of Dryden v. Railway Co., 208 Pa. 316, Mr. Justice Dean says:

“ In the meantime the business of the railroads had enormously expanded; they wanted more room ; in many cases it was impossible for them to perform the duties enjoined upon them by law and which by their charters they were bound to perform without increase of trackage; the public suffered as Avell as they; they had exhausted their power of location by their original taking; the land on each side had been improved by the erection of dwelling houses and other improvements close up to the line of their roadbed; they could not move their main line, and if they could have done so they would have been met by practically the same obstacles on a new route. Yet the public demand for transportation facilities had to be met. Such were the facts that in 1869 prompted the passage of that act. It was a necessity, which necessity has since become far more imperative.”

Again he says: “ By its express terms this act conferred upon railroad companies an authority Avhicli they did not theretofore have ; it restricted no road, whether its orignal taking Avas sixty feet, or less, to its first appropriation; it could widen and otherwise improve its line whenever in the opinion of its board of directors such widening was necessary. To give the act any other meaning, would, in view of the facts, defeat its main purpose. Any house owner could effectually put a stop to any attempt of the company to provide for the safety of persons and property or to furnish increased facilities for transportation. There is not a word in the act which manifests an intention to limit the power as in the tenth section of the Act of 1849, P. L. 79, nor has it ever been so interpreted by this court.”

The Glenwood Railroad Company had the power to appropriate and condemn the land in question and it cannot successfully be said that the power is stricken down because its exercise operates for the benefit of the company’s lessee or lessees.

In the case of Glaser v. R. R. Co., 208 Pa. 328, the same Justice said:

“The inference that the taking is not for the benefit of the defendant company because its road has been leased to the Baltimore and Ohio, is not warranted by that fact. It has been held in every case, where the question arose, that when the corporate identity of the lessor company Avas maintained, that its statutory powers were continued, although the exercise of them inured partly to the advantage of the lessee company. It may bo safely assumed that no lease of corporate property would be made if the lessee thereby relinquished all the corporate powers of the lessor company.”

The contention of the appellants that as the Glenwood company had leased its railroad and property and owns no cars or motive power that the appropriation of appellants’ land was not necessary to increase its facilities for business and transportation is confronted with the findings of the learned trial judge that the company has, by a proper resolution, determined that it is necessary and in addition that as a matter of fact that it is so. The power of the board of directors to determine the necessity of widening and improving is lodged with it and its action is conclusive, unless fraud or bad faith be shown. As a lessee company operating a road ordinarily furnishes most of the cars and all that is necessary in the conduct of transportation, a lessor company may deem it necessary to widen its road and improve the leased property in order to meet the demands of the increased business passing over it. In fact the failure of a lessor company so to exercise its power in certain contingencies, might in some cases operate as destructive of important rights of a lessee in the operation of the leased property and thus render its lease almost valueless. In the present case the lessor company, finding that the widening and improvement of the property was necessary and was required for the transportation conducted by the lessees (the other appellees), determined by proper corporate action that the appropriation of the properties in question was necessary. Assuredly its power so to appropriate could not be questioned if done for itself and it certainly does not cease to exist because its exercise might operate to the benefit of its lessees, who could properly request that the power be so exercised by the lessor to meet the exigencies growing out of increased transportation.

This is not a case as argued by appellants of a foreign corporation (the Baltimore and Ohio Railroad) using the charter right of a Pennsylvania company and its leased lines to appropriate private property, but one where a lessor company exercises the power which it possesses under its charter and appropriates the property in question. If bad faith be alleged in such exercise of the powers so existing, such question can only be raised by the commonwealth : Windsor Glass Company v. Carnegie Company, 204 Pa. 459.

The power of the Pittsburg and Connellsville Railroad to lease from the Glenwood Railroad Company, and that of the Baltimore and Ohio Railroad Company to lease the railroad and leased lines of the first named company are practically conceded and if this be so, the action of the lessor company, the Glenwood Railroad Company, in appropriating lands necessary for it, and so determined to be by proper authority, can in no sense of the word be an exercise of the power of eminent domain by the Baltimore and Ohio Railroad Company, a foreign corporation.

The assignments of error are not sustained and the decree is affirmed.