text:
    Jessop v. Kittanning Borough, Appellant
    (No. 1).

      Deed — Plan of lots — Streets—Obstruction—Injunction—Equity.
    1. The purchaser of a lot sold according to a plan, has the right to the use of streets and alleys shown on the plan, and he may maintain his right by a bill in equity for an injunction to restrain the obstruction of such streets and alleys.
    2. Where a borough is joined with a corporation as a defendant in a bill in equity to restrain the obstruction of a private right of way which the borough had never accepted as a public street, and a decree is entered against the defendants with the costs on the corporation, and there is nothing to show that the borough ever intended to obstruct the right of way, the borough has no interest in securing by an appeal the reversal of the decree of the court below.

      Equity — Equity practice — Final decree.

    3. It is not in accordance with the equity rules to enter a final decree by adding to a decree the words “Above decree is entered absolutely.” The final decree should be complete in itself.
    Argued April 26, 1909.
    Appeal, No. 79, Oct. T., 1909, by Kittanning Borough, from decree of C. P. Armstrong Co., Sept. T., 1908, No. 189, on bill in equity in case of Samuel A. S. Jessop v. The Borough of Kittanning, H. J. Hays, Burgess, P. C. Hutchinson, F. C. Mohney, James F. Foulis, W. F. Knoble, J. S. Hudson and M. H. Colwell, Members of Council, and the Kittanning Iron & Steel Manufacturing Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter JJ.
    Affirmed.
    Bill in equity for an injunction. Before Patton, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree awarding injunction.

      R. L. Ralston, with him H. A. Heilman and H. L. Golden, for appellant.
    If it be the law that a public street of a borough can be created by prescription alone as the court holds, then the borough has an undoubted right to assume control over Willow street and vacate it, for the court distinctly finds that said street had become a street by prescription: Black v. Ry. Co., 34 Pa. Superior Ct. 416.
    “The right of a grantee, and those who claim under him, to have a street upon which his deed calls for a frontage kept open as a way appurtenant to his land is, as against his grantor and those claiming under him, entirely distinct from and independent of the right of citizens generally to use the public highways of a municipality:” Carroll v. Asbury, 28 Pa. Superior Ct. 354.
    The private easement of the plaintiff is not extinguished by the vacation on the part of the borough, hence he is not injured: Black v. Pittsburg & Butler Street Railway Company, 34 Pa. Superior Ct. 416; Nocton v. Penna. R. R. Co., 32 Pa. Superior Ct. 555.

      R. A. McCullough, for appellee.
    The vacation of a street implies all the court imputes to it. It directs its annulment and implies a direction to the public authorities to close it permanently and absolutely, and authorizes its closing by abutting property owners: Woodyatt v. Hughes, 10 Kulp, 402; In re Chestnut Street, 3 Pa. Dist. Rep. 497.
    The joint use of a private way by the public does not constitute a dedication to the public, no matter how long the joint use may continue: In Re Griffin’s Appeal, 109 Pa. 150; Weiss v. Bethlehem Borough, 26 W. N. C. 433; Beatty’s Plan, 104 Pa. 622; Root v. Com., 98 Pa. 170; Krier’s Private Road, 73 Pa. 109; Steel v. Huntingdon Borough, 191 Pa. 627.
    In the case of a private way laid out by the owners of the soil, the same cannot be vacated without the consent of all persons for the time being having an interest therein: In Re Askin’s Lands, 17 Phila. 660; In Re Streets in Wayne, 2 Del. Co. 115; McCarty v. Kitchenman, 47 Pa. 239; McKee v. Perchment, 69 Pa. 342.

      October 11, 1909:
   Opinion by

Mr. Justice Potter,

This is an appeal by the borough of Kittanning, from a decree enjoining it from obstructing or vacating Willow street, in said borough, and two alleys running into that street, and from aiding the Kittanning Iron & Steel Company in so doing. The facts upon which the decree was based were found by the court below, as follows:

The Kittanning Iron Works, a partnership, prior to July 1, 1848, owned a tract of land in Kittanning township, lying immediately south of Kittanning borough. 'While the court does not find it as a fact, it appears from the statement of counsel that this land was subsequently annexed to the borough. Desiring to sell it, the owners made a plan, dividing it into lots, streets and alleys, and showing the size, number and dimensions of the lots, and the location of the streets and alleys. This plan was not recorded. Certain lots were conveyed by the Kittanning Iron Works, according to this plan, the deeds reciting that the Kittanning Iron Works had laid out the lots “with convenient lanes, streets and alleys, and numbered them from 249 to 264, inclusive,” and the conveyances were made “in fee simple with the free and unlimited use of the lanes, streets and alleys aforesaid.” An undivided one-third interest in two of the lots so conveyed, Nos. 254 and 256, has become vested in S. A. S. Jessop, the plaintiff below and appellee. Another lot, No. 262, is vested in his brother, C. J. Jessop. The title to the other thirteen lots on the plan at the time of the filing of the bill in this case, had become vested in the Kittanning Iron & Steel Manufacturing Company, a corporation, which had succeeded to the business of the Kittanning Iron Works.

The borough of Kittanning never graded, paved nor sewered any of the streets or alleys upon the plan, or accepted any of them as public ways, exercised any control over them, or expended any money in their improvement or repair, except a trifling sum spent by the street commissioner for his individual benefit.

The court below finds that there was no acceptance of the streets and alleys by the borough. The present owners of the lots and their predecessors in title have used the streets and alleys in the plot for sixty years, and they have also been used by the public without objection or hindrance during that period of time, except for certain obstructions, which are not material to the determination of the present appeal.

On the south side of the plan was a street, twenty-four feet wide, called Willow street, into which ran an alley ten and three-quarters feet in width, bounding the plaintiff’s lots on the west. The Kittanning Iron & Steel Manufacturing Company, at the time the bill was filed, owned all the land on both sides of this street and had already partially obstructed the west end of the street, without objection on the part of appellee. These obstructions, however, did not prevent the use of the street for access to appellee’s premises through the alley.

On June 25, 1908, upon petition of the iron and steel company, the borough council passed an ordinance that Willow street, located as stated above, “be vacated and annulled,” also requiring the iron and steel company to give bond in the sum of $20,000 to pay all damages incurred in the vacation of the street and recompense the borough for all legal expenses incurred in testing the validity of the ordinance.

The Kittanning Iron & Steel Manufacturing Company proposed to obstruct Willow street, by building upon it an elevated railroad track or trestle, fourteen to sixteen feet high, supported by heavy timbers on a cement foundation, and had begun the work when the bill in this case was filed and a preliminary injunction granted.

On August 17,1908, the plaintiff, S. A. S. Jessop, filed a bill in equity, subsequently amended, against the borough of Kittanning, the members of the borough council, and the Kittanning Iron & Steel Manufacturing Company, setting forth the above facts, and praying that the defendants be enjoined from closing or obstructing Willow street. A preliminary injunction was granted in accordance with the prayer of the bill, demurrers to the bill and the amended bill were overruled, answers filed, and the case tried.

The court below, after trial, made the following decree nisi:

And now, February 11, 1909, this case came on to be heard and after argument of counsel and due consideration, it is ordered and decreed that the Kittanning Iron & Steel Company be perpetually enjoined from further excavating or building trestles or elevated railroad tracks upon or over Willow street, or in any manner further obstructing said Willow street or the ten and three-quarters or twelve-foot alley.

That the borough of Kittanning be perpetually enjoined from obstructing or vacating Willow street or the ten and three-quarters or twelve-foot alleys or assisting the Kittanning Iron & Steel Company in so doing.

That the defendant, the Kittanning Iron & Steel Company, pay the costs.

Exceptions filed by defendants were overruled, and the above decree was entered absolutely. The borough of Kittanning has appealed.

The final decree was not complete in itself, as it should have been. It merely refers to the decree nisi, and states that the “above decree is entered absolutely.” However, the tenth assignment contains that portion of the decree nisi which relates to the present appellant, and this in connection with the fifteenth assignment raises the question determined in the final decree against the appellant; although not in formal compliance with the rules of this court. As the court below finds as a fact that Willow street was never accepted by the borough, and was not a public street, and as the borough merely claims the right to vacate it, but has shown no desire to obstruct the street or to interfere with appellee’s use of it, we do not see how the borough can have any interest in the reversal of,the decree of the court below. The case for the plaintiff rests not upon the contention that the street belonged to the borough, but upon the private grants made to his prede-cessors in title. The borough is not even interested in the costs, as they were placed upon the other defendant. As to the merits of the case, the court below was clearly right. The right of a purchaser of a lot, sold according to a plan, to the use of streets and alleys shown on the plan, is thoroughly settled.

In Transue v. Sell, 105 Pa. 604, Chief Justice Mercur said (p. 609): “When one who is the proprietor of the portion of the town in which the lands lie, sells and conveys the lots according to a plan which shows them to be on a street or alley, it creates an implied covenant of the existence of the street or alley.”

In In re Opening of Pearl Street, 111 Pa. 565, it was said, per curiam (p. 572): “When (a grantor) sells and conveys the lots according to a plan which shows them to be on streets, he must be held to have stamped upon them the character of public streets. Not only can the purchasers of lots abutting thereon assert this character, but all others in the general plan may assert the same. The proprietor is in no condition to afterwards revoke this dedication.”

In Quicksall v. Phila., 177 Pa. 301, Justice Fell cited the language above quoted from Pearl street with approval and also said (p. 304): “The sale of lots according to a plan which shows them to be on a street implies a grant or covenant to the purchaser that the street shall be forever open to the use of the public, and operates as a dedication of them to public use. The right passing to the purchaser is not the mere right that he may use the street, but that all persons may use it.”

The above language was quoted with approval in Woodward v. Pittsburg, 194 Pa. 193 (198), and the opinion in Quicksall v. Phila., 177 Pa. 301, was commended and followed in Osterheldt v. Phila., 195 Pa. 355 (361). And we held in Morrow v. Traction Co., 219 Pa. 619, that where a sale of lots was made according to a plan, not only the streets and alleys, but also an open square shown on the plan, was dedicated to the public, and the owners of lots on the plan were entitled to an injunction to prevent the obstruction of the streets or the square for private purposes.

The right of a lot owner in a plan of lots to prevent the obstruction of a street shown on the plan, cannot be doubted.

The assignments of error are dismissed, and the decree of the court below is affirmed. The costs of this appeal to be borne by appellant.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Jessop v. Kittanning Borough, Appellant
    (No. 2).

      Equity — Injunction—Obstruction oj private way — Adverse possession —Boroughs.

    1. An owner of a lot of land abutting on private streets and alleys shown by a plan of lots may maintain a bill in equity against another person also a lot owner for obstructing one of the alleys, although he and his predecessors in title have obstructed and closed up another of the private alleys; and the plaintiff in such a case will not be required to remove the obstruction made by himself as a prerequisite to establish his equity against the defendant, where it appears that the obstruction had been maintained for so long a time as to give the plaintiff title by adverse possession.
    2. Occupation of land for twenty-one years adverse to a private right of way, and inconsistent with it, bars the right.
    3. Where a bill in equity is filed against a borough and a corporation to enjoin obstruction of a private right of way, and it appears that the borough did nothing more than pass an ordinance vacating the street as if it were a'public street, the corporation has no standing to complain that the borough was improperly joined as a party defendant. In such a case the joinder of the borough in no way injures the other defendant.
    Argued April 26, 1909.
    Appeal, No. 78, Oct. T., 1909, by Kittanning Iron & Steel Company, from decree of C. P. Armstrong Co.,.Sept. T., 1908, No. 189, on bill in equity in case of Samuel A. S. Jessop v. The Borough of Kittanning, H. J. Hays, Burgess, P. C. Hutchinson, F. C. Mohney, James F. Foulis, W. F. Knoble, J. S. Hudson and M. H. Colwell, Members of Council, and the Kittanning Iron & Steel Manufacturing Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Patton, P. J.
    The facts appear by the opinion of the Supreme Court and by the report of Jessop v. Kittanning Borough (No. 1), ante, p. 583.

      Error assigned was decree awarding injunction.

      October 11, 1909:

      R. L. Ralston, with him H. A. Heilman and H. L. Golden, for appellant.

      R. A. McCullough, for appellee.
   Opinion by

Mr. Justice Potter,

This appeal is by the Kittanning Iron & Steel Manufacturing Company, from the same decree which was under consideration in the preceding case, the appeal of the borough of Kittanning. The following additional facts which were found by the court below, are pertinent and material to the determination of the questions raised by the present appeal:

As originally laid out, the plan of lots indicated an alley ten feet wide running west from Jefferson street, between lots Nos. 256 and 262, to the ten and three-quarter feet wide alley running south into Willow street. Lot 256 is one of the lots in which appellee now owns an interest, and lot 262 is owned by his brother, C. J. Jessop. The alley in question was closed about forty-five years ago by appellee’s predecessor in title, and has remained closed since that time. Part of a brick stable was erected on its western end twelve or thirteen years ago, and a tenement house was built on its eastern end towards Jefferson street some four years ago. It does not appear that any objection was ever made to the closing of this alley, either by the Kittanning Iron & Steel Manufacturing Company, the Kittanning Iron Works, or by any one else. The western end of the same alley, towards Water street, was closed about the same time by the Kittanning Iron Works, by placing iron ore upon it, and it continues to be so obstructed. We do not understand that the present appellant questions the rule, that one who purchases according to a plan is entitled to the free and unobstructed use for all time of the streets and alleys marked on the plan, but it alleges that appellee cannot avail himself of that rule, because he, or rather his predecessor in title, has closed up part of one of the alleys on the plan, and he continues to keep it closed, and has erected buildings on the right of way. Appellant contends that the maxim which requires one who seeks equitable relief to do equity, therefore, applies to appellee.

The court below was of opinion that this question could be raised only by cross bill and not as a defense, especially as persons who were not parties to the present bill were part owners of the properties bounding on the alley which had been closed. Also that, as the evidence showed that the defendant had for many years kept closed the western end of Willow street, and portions of two other alleys, "it would have come with a better grace from it, if it had offered to remove these obstructions if the plaintiff removed his. That would be equality as well as equity.” Under the circumstances of this case, we think the view of the court below was correct.

The plaintiff is responsible for any encroachments he has made upon the rights of the other lot owners in the plan, but that is not a sufficient reason for denying to him the relief to which he is here entitled. And the further fact appears as found by the court below that the alley was closed by plaintiff’s predecessor in title about forty-five years ago, and has remained closed during that period of time. The answer to defendant’s claim that plaintiff must do equity, by reopening this alley, before an injunction can be granted in his favor against the obstruction of Willow street, would seem to be the fact that he and his cotenants have long ago acquired title to the soil of the alley by prescription, and the right of way has been extinguished by adverse user for more than twenty-one years. Occupation of land for twenty-one years, adverse to a right of way, and inconsistent with it, bars the right: Greenmount Cemetery Company’s Appeal, 1 Sad. 371; Yeakle v. Nace, 2 Wharton, 123.

We see no merit in the suggestion that there is a misjoinder of parties, or that the bill is multifarious. The two defendants joined in the wrong, against which plaintiff sought relief, and the liability of each defendant arises out of the same transaction, the attempted vacation and obstruction of Willow street. This appellant was not prejudiced in any way by the joinder of the borough and its officers, as defendants in the bill.

The assignments of error are dismissed, and the decree of the court below is affirmed.


author: Mb. Justice Potteb,

text:
    Conneaut Lake Agricultural Association v. Pittsburg Surety Company, Appellant.

      Contract — Arbitration clause — Engineer.
    1. Where a building contract provides that all differences arising under or in reference to the agreement or to its performance or in any way connected with the work shall be referred to the engineer of the owner, whose decision shall be final and binding, the engineer's decision as to all matters relating to the performance or nonperformance of the work, is binding and conclusive; and in such a case an engineer has power to award damages for the delay in completing the work.
    2. Agreements to refer disputes to arbitration will be sustained and upheld, where the power to pass upon the subject-matter in dispute is clearly given to the arbitrator by the terms of the agreement.
    3. A suit brought by the owner against the contractor and subsequently discontinued is not a waiver of the arbitration clause in the building contract; and the bringing of such a suit cannot be set up as a defense in a subsequent action against the surety of the contractor.
    4. Where under the terms of a building contract it is provided that all disputes shall be referred to an arbitrator and the arbitrator meets and notifies the contractor and the surety of the place of meeting and neither the surety nor the contractor appear, the surety in a suit on the award is not in position to raise questions which if they had any merit should have been raised by the contractor and which were clearly within the jurisdiction of the arbitrator chosen by the parties to the contract to decide all matters of difference between them connected in any way with the work.
    Argued April 27, 1909.
    Appeal, No. 52, Jan. T., 1909, by defendant, from order of C. P. Crawford Co., May T., 1908, No. 123, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Conneaut Lake Agricultural Association v. Pittsburg Surety Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Assumpsit on a bond. Before Bouton, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      John P. Hunter, with him Manley O. Brown, E. Lowry Humes and George J. Shaffer, for appellant.
    The institution of a suit by one party against the other after the submission has been entered into, and before an award has been made, the cause of action being the subject of the arbitration, will operate to revoke, by implication, the agreement to arbitrate: Whelen v. Boyd, 114 Pa. 228; McKenna v. Lyle, 155 Pa. 599; Fayette County v. Laing, 127 Pa. 119; Wright v. Ins. Co., 110 Pa. 29.
    If the arbitrator, in making his alleged award, took into consideration matters not included in the arbitration clause, or failed to take into consideration matters which were fairly included in its language, the award is void: Lauman v. Young, 31 Pa. 306; Dobbling v. Railway Co., 203 Pa. 628.
    It is well settled that, to take from a party his remedy at law, is in derogation of civil rights, and where such is the effect of an agreement to arbitrate, the language of the agreement must be unequivocal and the party setting up such an agreement must show that the breach comes clearly within the scope of such submission: McGovern v. Bockius, 10 Phila. 438; Lauman v. Young, 31 Pa. 306; Dobbling v. Railway Co., 203 Pa. 628; Chandley v. Cambridge Springs, 200 Pa. 230.

      Frank J. Thomas, of Thomas & Thomas, for appellee.
    The award was binding and conclusive upon the appellant: Monongahela Navigation Co. v. Fenlon, 4 W. & S. 205; Frederick v. Margwarth, 221 Pa. 418; O’Reilly v. Kerns, 52 Pa. 214; Reynolds et al., Executors, v. Caldwell, 51 Pa. 298; Wightman v. Pettis, 29 Pa. 283; Howard v. Allegheny Valley R. R. Co., 69 Pa. 489; Hartupee v. City of Pittsburg, 97 Pa. 107.
    The bringing of suit by appellee against L. C. Klosterman & Company was not a waiver of the arbitration clause: Barclay v. Deckerhoff, 171 Pa. 378; Hamilton v. Hart, 109 Pa. 629.
    The appellant was not obliged to discontinue the suit before proceeding against the appellant, as surety upon said bond, but might have proceeded against both simultaneously and until satisfaction was received: King v. Blackmore, 72 Pa. 347; Cope v. Smith, 8 S. & R. 110; Findlay & Hay v. Keim, 62 Pa. 112; Irvine v. Lumbermen’s Bank, 2 W. & S. 190; Cornelius v. Vanarsdallen’s Admr., 3 Pa. 434; Hessenbruch v. Markle, 194 Pa. 581; Blackburn v. Watson, 85 Pa. 241; Noble v. Thompson Oil Co., 69 Pa. 409.
    October 11, 1909:
   Opinion by

Mb. Justice Potteb,

The appellant in this case was sued, in its capacity as surety upon a contractor’s bond. In the statement of claim by plaintiff it is averred that the defendant, the Pittsburg Surety Company, had duly executed and delivered to plaintiff a bond, of which a copy was attached, and by which defendant bound itself in the sum of $3,500 “for the faithful performance on the part of L. C. Klosterman & Co., of Pittsburg, Pa., of all and every the covenants, agreements and conditions to be kept and performed by the said L. C. Klosterman & Co., contained in a certain contract entered into between the plaintiff and the said L. C. Klosterman, dated the 12th day of May, 1905.” The contract referred to, which was attached to and made part of the statement, was for the construction of a race track on plaintiff’s grounds at Exposition Park, Crawford County, Pa., for the total cost of $3,500. The work was to be done “under the direction and inspection of the company’s engineer and to the full satisfaction and acceptance of the engineer.” The contract also provided that “all questions, differences, etc., which may arise between the company and the contractor under, or in reference to this agreement, these specifications or to its performance or nonperformance or the work to which they relate, or in any way connected with the work will be referred to the engineer and his decision will be final and binding.”

The contract required the work to be completed within fifty days from its date, and provided that, if the contractors should fail to complete it as agreed, they should forfeit the sum of $100 for every day, excluding Sundays, that it should “remain unfinished after the time agreed upon (for) its completion, the sum so forfeited to be retained as liquidated and ascertained damages out of any money that may then be due or owing, or may hereafter become due or owing to the said contractor, on account of his work under this contract.”

The statement further averred that the contractors had failed to carry out or comply with their covenants and undertakings in the said contract, to the damage of plaintiff in the sum of $3,700.30, and that “upon violation of the contract as aforesaid on the part of L. C. Klosterman & Co., the plaintiff, as is provided in Section Eleven of said contract, presented and proved its claim for damages before W. T. Dutton, the duly authorized and appointed engineer of the said plaintiff, who after due notice given to all parties in interest, reported upon the same, a copy of which report or decision is hereto attached and marked Exhibit ‘C’ and made a part hereof.”

By the award of the engineer it appeared the plaintiff had referred its claim for damages to him and that he had appointed a meeting for the purpose of considering them, of which notice was given to the plaintiff, to the contractors and to the surety company, defendant. Neither of the latter parties appeared at the time fixed or at any other time before the engineer. The engineer found and assessed damages sustained by the plaintiff from the failure of Klosterman & Co., to fulfill the contract, in the sum of $3,700.30. Suit was thereupon brought in the present case to recover the full amount of the bond. An affidavit of defense was filed, in which was set up in the first place a pending and undetermined suit brought before the award of the engineer was made, directly upon the contract by plaintiff against L. C. Klosterman & Co., the contractors. It appears, however, from the opinion of the court below that after the affidavit of defense was filed, the former suit was discontinued, by leave of court, nunc pro'tunc as of a date prior to the commencement of the present suit.

In the affidavit of defense the validity of the award was denied, and it was averred that the matters passed upon by the engineer were not within the terms of the submission as contemplated in the contract. It was also alleged that the engineer who made the award was not the same person who was engineer for plaintiff when the .work was begun, and that the award was fraudulent and void, and was improperly secured by plaintiff. No specifications were made of the alleged fraud, except that the award bore date, December 20, 1907, which was prior to the last hearing before the engineer on March 12, 1908. Plaintiff, however, was permitted to amend its statement by averring that the date, December 20, 1907, was a clerical error, and that the award was not actually made until April 20, 1908. This averment is not denied by defendant.

Upon a rule for judgment, the court below held that the bringing of the prior suit against the contractors could not be pleaded in bar in this case and that both the contractors and the surety company were concluded by the award of the engineer as to the liability of the former under the contract, and as to the amount of damages sustained. Judgment was entered against defendant for want of a sufficient affidavit of defense in the full amount of the bond.

It is firmly settled by the law of Pennsylvania that agreements to refer disputes to arbitration, will be sustained and upheld, where the power to pass upon the subject-matter in dispute, is clearly given to the arbitrator, by the terms of the agreement: Hunn v. Institution, 221 Pa. 403; Somerset Borough v. Ott, 207 Pa. 539.

. The terms of the submission in the case at bar as noted above, were:

All questions, differences, etc., which may arise between the company and the contractor under or in reference to this agreement, these specifications, or to its performance, or the work to which they relate, or in any way connected with the work, will be referred to the engineer, and his decision will be final and binding.

This language, it will be seen, is very broad and seems to cover all the questions passed on by the engineer and enumerated in his award. They all relate to the performance or nonperformance of the agreement, and are connected with the work to be done thereunder. The contention that the engineer had no power to award damages for the delay in completing the work, is met by the principles laid down by this court, in Clark & Sons Co. v. Pittsburg, 217 Pa. 46, in construing an agreement in which similar broad powers to arbitrate were conferred upon the director of the department of public works.

There is no merit in the suggestion that the bringing of a suit against the contractors was a waiver of the arbitration clause. This suit was not brought to trial, but was discontinued. The ruling of the trial judge in this respect is amply supported by the case of Barclay v. Deckerhoff, 171 Pa. 378. We might add, that this is hardly a proper question to raise in the present case. The parties are not the same. This is a suit upon the bond of the surety company, while the former suit was brought directly upon the contract, against the contractors. We agree with the court below, that the affidavit of defense is insufficient to prevent judgment against the surety. The award was conclusive and binding upon it. The appellant was notified of the time and place of hearing before the arbitrator. It did not, apparently, see fit to appear and defend when it had the opportunity to be heard. It is not now in a position to raise questions which if they had any merit should have been raised by its principals, the contractors, and which were clearly within the jurisdiction of the arbitrator chosen by the parties to the contract, to decide all matters of difference between them, connected in any way with the work.

The judgment is affirmed.


author: Mr. Justice Stewart,

text:
    Barthelmas, Appellant, v. Lake Shore & Michigan Southern Railway Company.

      Negligence — Railroads—Grade crossing — “Stop, look and listen”— Evidence — Case for jury.

    1. The rule which imposes on the traveler the duty of stopping, looking and listening before entering on a crossing, implies antecedently that there is a safe place where he may stop and by the exercise of his senses of seeing and hearing, inform himself as to the situation with respect to safety. Where there is no such place his failure to stop will not acquit him of contributory negligence if he does not stop, the rule being imperative and invariable that the traveler must stop, look and listen, no matter what the conditions, and failure to do so is negligence per se.
    2. If the proper place at which one stops admits of but a restricted view of the track, and the conditions are such as to deaden the sound or signal of an approaching train, it is the travelers’ duty in entering on the crossing to be all the more cautious,and observant; but the law defines no particular act in this connection which at his peril he must do or refrain from doing. If it be shown that he stopped at a place as good as any other for observation and looked and listened without seeing or hearing warning, whether he was negligent in entering upon the crossing would depend entirely upon the circumstances under which he made his attempt.
    3. Where a traveler with several tracks to cross enters upon the first track without violating any fixed rule, the duty continues with him to be watchful to the end. The law defines no particular act that he must do to avoid the imputation of contributory negligence, except that if any intervening space between any of the tracks offers, where with safety to himself he can have larger opportunities for seeing and hearing, he is bound there to stop, look and listen quite as much as he was bound to stop before entering upon the first track.
    4. In an action against a railroad company to recover damages for personal injuries sustained at a grade crossing, the case is for the jury where the evidence is in effect that the plaintiff at the time of the accident was driving a one-horse milk wagon, opened at the sides and in front; that at the crossing there were eleven tracks,.the view of which was obstructed by large establishments and by standing cars; that the gate at the farther end of the crossing was open, and a bell on a pole used to give warning of approaching trains was silent; that plaintiff stopped, looked and listened at a point near the tracks equal in opportunities for observation to any he had passed; that he advanced upon the first track and there again stopped, looked and listened; that he then proceeded, crossing the second, third and fourth tracks, the view of which was all obstructed by standing cars; that between the fourth and fifth tracks there was only a space of seven feet; that after passing the fourth track the view was at most only for a distance of about forty feet; and that immediately upon plaintiff’s emerging from behind box cars on the fourth track, he was struck by a train passing on the fifth track.
    Argued April 27, 1909.
    Appeal, No. 139, Jan. T., 1909, by plaintiff, from judgment of C. P. Erie Co., Sept. T., 1907, No. 75, for defendant non obstante veredicto in case of William Barthelmas v. The Lake Shore & Michigan Southern Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Walling, P. J.
    The circumstances of the accident are set forth in the opinion of the Supreme Court.
    At the trial the jury rendered a verdict in favor of the plaintiff for $4,877. Subsequently the court entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      U. P. Rossiter with him P. D. Hyner; for appellant.
    The case was for the jury: Elston v. D., L. & W. R. R. Co., 196 Pa. 595; Confer v. Penna. R. R. Co., 209 Pa. 425; Fennell v. Harris, 184 Pa. 578; Ellis v. Lake Shore, etc., R. R. Co., 138 Pa. 506; Ayers v. Ry. Co., 201 Pa. 124; Link v. R. R. Co., 165 Pa. 75; Newton v. R. R. Co., 18 Pa. Superior Ct. 18; Worthington v. Ry. Co., 23 Pa. Superior Ct. 195; Newman v. R. R. Co., 203 Pa. 530; Smith v. R. R. Co., 158 Pa. 82; McGill v. Ry. Co., 152 Pa. 331; Neiman v. Delaware & Hudson Canal Co., 149 Pa. 92; Bare v. Penna. R. R. Co., 135 Pa. 95; Messinger v. R. R. Co., 215 Pa. 497; Roberts v. D. & H. Canal Co., 177 Pa. 183; Hanna v. Ry. Co., 213 Pa. 157; Lake Shore, etc., Ry. Co. v. Frantz, 127 Pa. 297; Corrigan v. Penna. Co., 218 Pa. 336; Bracken v. Penna. R. R. Co., 222 Pa. 410; Keifner v. Ry. Co., 223 Pa. 50; Beach v. Penna. R. R. Co., 212 Pa. 567.

      T. A. Lamb, for appellee,
    cited: Kinter v. Penna. R. R. Co., 204 Pa. 497; Central R. R. Co. of N. J. v. Feller, 84 Pa. 226; Ely v. Ry. Co., 158 Pa. 233; Mankewicz v. R. R. Co., 214 Pa. 386; Penna. R. R. Co. v. Beale, 73 Pa. 504; Penna. R. R. Co. v. Ackerman, 74 Pa. 265; Ellis v. Lake Shore, etc., Ry. Co., 138 Pa. 506; Holden v. Penna. R. R. Co., 169 Pa. 1; Blotz v. R. R. Co., 212 Pa. 154; McKahan v. B. & O. R. R. Co., 223 Pa. 1; Walsh v. Penna. R. R. Co., 222 Pa. 162; Keller v. P. & R. Ry. Co., 35 Pa. Superior Ct. 488; Lohrey v. Penna. R. R. Co., 36 Pa. Superior Ct. 287.
    October 11, 1909:
   Opinion by

Mr. Justice Stewart,

The plaintiff driving west on German street in the city of Erie, in daylight, in a milk wagon, open at the sides and in front, approached a railroad crossing where there were eleven tracks. The first three were sidings, the fourth an exchange freight track, next beyond were four main tracks, the first two being for west-bound trains, the other two for east-bound trains, and beyond, still other sidings. The gate at the entrance to the crossing was open. When he reached this gate he stopped, looked and listened. The place afforded but little if any opportunity for seeing or hearing, nevertheless, it was quite as good for this purpose as any point he had passed. At either side were large establishments built out close to the track, and the noise from these was sufficient to drown the sound of an approaching train or the sound of bell or whistle, while upon either side of the crossing were box cars which shut off his view. Observing that the gate at the farther end was open as well, and that the bell in the tower at that point, which was used to give warning of approaching trains, was at rest, with the watchman in the tower, he advanced upon the first track and there again stopped, looked and listened. He proceeded from this point crossing the second, third and fourth tracks. His view to the side continued to be obstructed by the box cars so long as he was upon any of these tracks. After passing the fourth track he could see at most only for a distance of about forty feet along the tracks. There was here, however, only a space of seven feet between the fourth track and the one next beyond. Immediately upon his emerging from behind the box cars on the fourth track he was struck by a train passing from the west on the first main track. In a charge unexceptionable in its presentation of fact and law the learned trial judge submitted the questions of the defendant’s negligence and plaintiff’s contributory negligence to the jury. On each issue the finding was against the defendant. A motion for judgment non obstante followed; and upon a review of the case the judge reached the conclusion that, because the plaintiff could neither see nor hear at either. place he stopped, a positive and fixed duty rested on him to alight from his wagon and go forward himself or lead his horse until he reached the place where he could get a view of the tracks before attempting to drive further. He accordingly directed judgment for the defendant. This was clearly a mistaken view of the law of the case. First, as to his advancing at all upon the crossing. The rule which imposes on the traveler the duty of stopping, looking and listening before entering on a crossing, implies antecedently that there is a safe place where he may stop, and by the exercise of his senses of seeing and hearing, inform himself as to the situation with respect to safety. Here admittedly there was no such place. This circumstance, under the doctrine of Penna. R. R. Co. v. Beale, 73 Pa. 504, would not have acquitted the plaintiff of contributory negligence had he failed to stop, for he would not have been permitted to show it, the rule being imperative and invariable, that the traveler must stop, look and listen no matter what the conditions, and failure to do so is negligence per se. But the plaintiff did stop, look and listen at a point equal in opportunities for observation to any he had passed, if not better, and as close to the crossing as consisted with safety. He therefore had met every requirement of the rule. Unquestionably further duty rested upon him before advancing upon the crossing, but not under the above-quoted rule, nor because of any other fixed, unbending rule applicable to all cases alike, requiring some particular act to be done, or avoided, as the case may be, after one having stopped at a proper place, looked and listened, then advances. The law requires vigilance and care with every step taken, and these rise in degree with the risk. Therefore, if the proper place at which one stops admits of but a restricted view of the track, and the conditions are such as to deaden the sound or signal of an approaching train, it is the traveler’s duty in entering on the crossing to be all the more cautious and observant; but the law defines no particular act in this connection which at his peril he must do or refrain from doing. If it be shown that he stopped at a place as good as any other for observation, and looked and listened without seeing or hearing warning, whether he was negligent in entering upon the crossing would depend entirely upon the circumstances under which he made the attempt. In this case circumstances proper to be considered would be the open gates — open because of admitted failure of the watchman in charge to do his duty, for which no other excuse is advanced than that he was inexperienced — and the silence of the bell which was intended to give warning of approaching trains; these in connection with the further fact that the obstructions to view were largely of the railroad company’s creation. Certainly the conditions invited the plaintiff to attempt the crossing. To what extent he was justified in acting upon the invitation under the circumstances, was not a question that the court could determine by any fixed rule of law, but one exclusively for the jury. The measure of one’s duty under such conditions is determined by no fixed standard, and the question of negligence becomes one of law and fact which the jury alone can determine. In Neiman v. D. & H. Canal Co., 149 Pa. 92, the court was asked to instruct the jury, that the plaintiff having stopped at a point where from his own testimony he could not see up the track, the track being concealed from view by buildings, and the steam from a manufacturing plant close by, it was his duty to get out of his wagon and lead his team, and his failure to do so was contributory negligence. The point was refused on the ground that it withdrew from the jury a question of fact which must be determined by them. In a per curiam this court held that whether the plaintiff was guilty of contributory negligence, was one which under the circumstances was entitled to be passed on by the jury: that it could not have been ruled as a question of law.

Having once entered upon .the first track without violating any fixed rule, and other tracks remaining to be crossed, the duty continued with the plaintiff to be watchful to the end. But even in this case the law defines no particular act that he must do to avoid the imputation of contributory negligence, except, that if any intervening space between any of the tracks offers, where with safety to himself he can have larger opportunities for seeing and hearing, he is bound there to stop, look and listen quite as much as he was bound to stop before entering upon the first track. It may be that this plaintiff when he was upon the third and fourth tracks, because of the box cars standing there, was in a safe place, and that it was his duty there to get out of his wagon and advance, either leading or without his horse, to the open space between the fourth track and the one on which he was struck, a space of seven feet and which commanded a view of the track for forty feet. But how are we to know it was a safe place? There may be circumstances making it perfectly safe to stop with a wagon on railroad tracks, but these are certainly exceptional cases. We know that one is safe from an approaching train if he stop at a reasonable distance from the track, and because this is so evidently true, the law is imperative that he shall so stop; because safety in stopping on a track or tracks is not always safe, the law establishes no rule requiring it. Here again, the measure of one’s duty is determined by no fixed standard, and the question of negligence becomes one of law and fact which the jury only can determine. This is the doctrine of all our cases. In Cookson v. Pittsburg Ry. Co., 179 Pa. 184, it is said, “The duty of the traveler is therefore not only to keep a vigilant and continuous lookout but to stop if a second place affords any increased facility to discover impending danger, but whether there is any such second place is a question of fact which is for the jury if at all in doubt.” In Muckinhaupt v. Erie R. R., 196 Pa. 213, it is said, “He must stop at a proper place, and when he proceeds he should continue to look .and observe the precautions which the danger of the situation requires. He should stop again if there is another place nearer the tracks from which he can better discover whether there is danger. But whether the place at which he stopped was the proper place at which to stop, and whether there is a second place at which he could stop, are questions of fact for the jury and not matters of law for the court.” Still more directly in point is Elston v. Del., L. & W. R. R. Co., 196 Pa. 595. There it is said, “ If the deceased had been walking over the crossing he might have been held as matter of law to the duty of stopping and looking after he crossed the third track, as he would have had ample space in which to see- without exposing himself to danger: Keppleman v. Phila. & Reading Ry. Co., 190 Pa. 333. And the presumption that he looked would have been overcome by the fact that he stepped in front of a moving train which he either saw or could have seen if he had looked, as in Carroll v. Penna. R. R. Co., 12 W. N. C. 348, and Marland v. Pittsburg, etc., R. R. Co., 123 Pa. 487. But riding in a wagon and driving a pair of horses whose management required his attention the conditions were different. The act of the company in so placing its cars that he was obliged to drive through a narrow passage between them, put him in danger from the time he attempted to cross, and it left no place from which he could see until he was in a position where if he had any chance at all a moment’s hesitation as to the right course to pursue or a slight error of judgment would result in disaster. The court can treat the question of contributory negligence as one of law only in clear cases where the facts and the inferences to be drawn from them are free from doubt. The deceased obeyed the unbending rule “to stop, look and listen.” Having stopped in the place where the public using the highway in the same manner usually stopped, whether he should have stopped again or whether without stopping he should have been seen in time to avoid injury was a question for the jury and not for the court.” No less pertinent and explicit is the case of Newman v. R. R. Co., 203 Pa. 530. Further citations are unnecessary. The view of the law here expressed prevailed with the learned judge on the trial of the case, and under proper instructions from him as to the law the jury found the plaintiff clear of contributory negligence. This should have ended the case. It was error to direct- judgment for the- defendant non obstante. This judgment is now reversed with costs, and judgment is directed to be entered for the plaintiff on the verdict.


text:
    Conneaut Lake Ice Company, Appellant, v. Quigley.

      Appeals — Assignments of error — Assignments of error to the admission of evidence — Exceptions.
    1. Assignments of error to the admission of evidence are defective if they do not set forth the evidence admitted.
    2. Assignments of error to findings of fact and law, although showing that exceptions were filed, are defective if the dismissal of the exceptions is not assigned for error.
    3. Assignments of error to answers for requests for findings of law and fact will not be considered where no exceptions were taken to such answers.
    4. An assignment of error to a decree should set out the decree.

      Waters — Navigable lake — Act of March 21, 1798, 3 Sm. L. 320.,
    5. Where a lake is navigable in fact, it is navigable in law.
    6. If a body of water is sufficiently large and deep to serve the public in providing transportation to any considerable extent upon its bosom, it is sufficient to give the public an easement therein for the purpose of transportation and commercial intercourse.
    7. Submerged lands and lakes within the boundaries of the state belong to the state in trust for public use, substantially the same as submerged lands under navigable waters at common law.
    8. Where a meandered lake is nonnavigable in fact, the patentee of the land bordering on it takes to the middle of the lake; but where the lake is navigable in fact its waters and bed belong to the state in its sovereign capacity and the riparian patentee takes the fee only to the water's edge.
    9. The Act of March 21, 1798, 3 Sm. L. 320, declaring Conneaut Lake to be a public highway for the passage of boats and rafts was not a taking of property, but merely a-declaration on the part of the commonwealth that it made a particular use of a body of water which it already held for the benefit of the public.
    10. Where an owner of all of the land abutting on a navigable lake leases a portion of it for a term of 999 years, and inserts covenants in the lease against the discharge of sewerage into the lake and limiting the amount of ice to be cut, he has no right under the terms of the lease to enjoin the navigation of the lake by the lessee with a steamboat. If in such a case the lessor has any rights, he has his remedy at law.

      Landlord and tenant — Construction of lease.

    11. In case of doubt and uncertainty as to the meaning of a lease it is to be construed most strongly against the grantor and in favor of the grantee.

      Argued April 27, 1909.
    Appeal, No. 143, Jan. T., 1909, by-plaintiff, from decree of C. P. Crawford Co., Sept. T., 1906, No. 1, dismissing bill in equity in case of Conneaut Lake Ice Company v. Amos C. Quigley et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Criswell, P. J., specially presiding.
    The opinion of the Supreme Court states the case.

      Errors assigned (1-56) sufficiently appear by the opinion of the Supreme Court.

      Frank J. Thomas and Q. A. Gordon, with them Thomas Roddy, E. S. Templeton and John O. McClintock, for appellant.
    Conneaut Lake is not a public navigable body of water in law: Hardin v. Jordan, 140 U. S. 371; Bolsa Land Co. v. Burdick, 12 L. R. A. (N. S.) 275; Jones v. Pettibone, 2 Wis. 308; Wis. River Imp. Co. v. Lyons, 30 Wis. 61; Neaderhouse v. State, 28 Ind. 257; Chisholm v. Caines, 67 Fed. Repr. 285; Smoulter v. Boyd, 209 Pa. 146; Manigault v. Ward & Co., 123 Fed. Repr. 707; Fulmer v. Williams, 122 Pa. 191; Barclay R. R. & Coal Co. v. Ingham, 36 Pa. 194; Gouverneur v. Ice Co., 134 N. Y. 355 (31 N. E. Repr. 865); Coovert v. O’Conner, 8 Watts, 470; Farnham on Water & Water Courses, secs. 854, 861.
    Conneaut Lake, whether originally or at the time of the taking by the commonwealth a public navigable body of water or not, when taken and enlarged by the commonwealth for a reservoir for canal purposes, and thereafter conveyed by act of assembly to the Erie Canal Company for a valuable consideration, passed in fee to said Erie Canal Company and its successors: Wyoming Coal Co. v. Price, 81 Pa. 156; Com. v. M’Allister, 2 Watts, 190; Haldeman v. Penna. R. R. Co., 50 Pa. 425; Rexford v. Knight, 11 N. Y. 308; Water Works Co. v. Burkhart, 41 Ind. 364; Blair v. Kiger, 111 Ind. 193 (12 N. E. Repr. 293); Malone v. Toledo, 34 Ohio St. 541; State v. Ry. Co., 53 Ohio St. 189 (41 N. E. Repr. 205); State v. Snook, 53 Ohio St. 521 (42 N. E. Repr. 544); Monongahela Bridge Co. v. Kirk, 46 Pa. 112; Pittsburg v. Epping-Carpenter Co., 194 Pa. 318; Phila. & Trenton R. R. Co.’s Case, 6 Whart. 25; Com. v. Alger, 61 Mass. 53; People v. N. Y. & S. I. F. Co., 68 N. Y. 71; Langdon v. Mayor of New York, 93 N. Y. 129; De Losier v. Canal Co., 11 Atl. Repr. 400.
    The owner of the land bordering upon the lake had the right, upon leasing same, to restrict the use of same or of the lake in connection therewith, and under the leases in question, the tenants have not the right to use the leased premises for the purpose of launching boats, or of embarking and landing for the purpose of navigating the lake, and equity will enjoin from so doing.
    A court of equity has jurisdiction: Whitney v. Union Ry. Co., 77 Mass. 359; Rogers v. Danforth, 9 N. J. Eq. 289; Lembeck v. Nye, 24 N. E. Repr. 686; Meyer v. Phillips, 97 N. Y. 485; Livingston v. Ogden, 4 Johns. Ch. (N. Y.) 48; Provident, etc., Steamboat Co. v. City of Fall River, 67 N. E. Repr. 647; Cobb v. Mass. Chemical Co., 60 N. E. Repr. 790; Murphey v. Lincoln, 22 Atl. Repr. 418; City of Peoria v. Johnston, 56 Ill. 45; Sunderland v. Whitesides, 7 Phila. 335; Com. v. R. R. Co., 24 Pa. 159; Bussier v. Weekey, 4 Pa. Superior Ct. 69; Stewart’s App., 56 Pa. 413; Scheetz’s App., 35 Pa. 88; Walters v. McElroy, 151 Pa. 549.

      George F. Davenport, with him Otto A. Stolz, for appellees.
    —Conneaut Lake is a public body of water: Flanagan v. Phila., 42 Pa. 219.
    Navigation in fact is the test in this state: Fulmer v. Williams, 122 Pa. 191; Flanagan v. Phila., 42 Pa. 219; The Daniel Ball, 77 U. S. 557; Packer v. Bird, 137 U. S. 661 (11 Sup. Ct. Repr. 210); Bridge Co. v. Kirk, 46 Pa. 112; Poor v. McClure, 77 Pa. 214; Coovert v. O’Conner, 8 Watts, 470.
    The rule in Wisconsin and Minnesota as to the ownership of small lakes is the same: Pewaukee v. Savoy, 103 Wis. 271 (79 N. W. Repr. 436); Lamprey v. State, 52 Minn. 181 (53 N. W. Repr. 1139).
    The state has power to improve, regulate and control navigable waters, but not to destroy their navigability: Flanagan v. Phila., 42 Pa. 219; Reighard v. Flinn, 189 Pa. 355; Smith v. Rochester, 92 N. Y. 463; Com. v. Fisher, 1 P. & W. 462.
    October 11, 1909:
    Public grants are to be strictly construed: Susquehanna Canal Co. v. Wright, 9 W. & S. 9; Monongahela Nav. Co. v. Coons, 6 W. & S. 101; Martin v. Waddell, 41 U. S. 367; Watuppa Reservoir Co. v. Fall River, 147 Mass. 548 (18 N. E. Repr. 465); Johnson v. Crow, 87 Pa. 184; Charles River Bridge Co. v. Warren Bridge Co., 36 U. S. 420.
    The title to the bed of the lake is still an open question: Wyoming Coal Co. v. Price, 81 Pa. 156.
    The appellees are not barred by the covenants in the lease from running their boat, to and from the lot leased: Grubb v. Grubb, 101 Pa. 11; Klaer v. Ridgway, 86 Pa. 529.

      Thomas Patterson, of Patterson, Sterrett & Acheson, for appellees,
    cited: Kennedy v. McCloskey, 170 Pa. 354; Harrison v. Nixon, 34 U. S. 483; Boone v. Chiles, 35 U. S. 177; Chisholm v. Caines, 67 Fed. Repr. 285; Illinois Cent. R. R. Co. v. Illinois, 146 U. S. 387 (13 Sup. Ct. Repr. 110); Reighard v. Flinn, 189 Pa. 355; Flanagan v. Phila., 42 Pa. 219.
   Opinion by

Mr. Justice Potter,

The Conneaut Lake Ice Company, a corporation, filed this bill in equity in the court of common pleas of Crawford county against Amos C. Quigley and H. E. Rhoads, in which it averred that it was the owner, and in possession of Conneaut Lake, the lands thereunder, and the waters thereof, and of the lands immediately adjoining and surrounding the lake; that as a consequence it had the exclusive right to control and navigate the waters of the lake, and to control the lands bordering upon it; that the defendants, who as tenants under it, held certain lands abutting on the lake, had, in violation of the plaintiff’s rights, as well as of the terms of their leases, launched and placed upon the lake, a certain boat intended to be used for the transportation of passengers and freight upon the lake for hire. The plaintiff prayed for an injunction to restrain the defendants from continuing to use such boat, or any other boat, for the navigation of the lake, and from placing any other boat on its waters.

The defendants, by their answer, claimed that the lake was part of the public waters of the commonwealth, and therefore they were entitled to use and navigate its waters, and denied that they had invaded any of the plaintiff’s rights or violated the-terms of the leases under which they occupied lands adjoining the lake.

The court below granted a preliminary injunction, but upon final hearing (Criswell, P. J., specially presiding). dismissed the bill at plaintiff’s cost. Plaintiff has appealed from the decree dismissing the bill. Counsel for appellants have filed fifty-six assignments of error, of which only one is in compliance with the rules of this court. Assignments one to five, inclusive, are not printed, being admittedly bad, as not based on any exception. Other assignments are to the admission of evidence, offered by defendants, but the evidence is not set out as required by rule 31. In other assignments to various findings of fact and law, exceptions were filed, but the dismissal of the exceptions is not assigned for error. Assignments twenty-four to forty-six, inclusive, are to answers for requests submitted by plaintiff for findings of law and fact, to which no exceptions were seemingly taken. Other assignments complain of the failure of the trial judge to find certain facts, as to which no specific requests for findings were made by plaintiff. Assignment fifty-four alleges as error, the decree dismissing plaintiff’s exceptions, and confirming and making absolute the decree nisi, but neither the exceptions nor the decree nisi, are set out in this or any other assignment. .Assignment fifty-five complains generally of the dismissal of the bill at plaintiff’s costs, but does not set out the decree. Assignment fifty-six assigns for error the final decree dismissing plaintiff’s bill. This assignment is in proper form, and raises all the questions which need to be considered.

The Act of March 21, 1798, 3 Sm. L. 320, declared certain streams and waters, including “Little Coniate Creek from the mouth up to the inlet of Little Coniate Lake” to be public streams and highways for the passage of boats and rafts. The court below has found as a fact that the creek and lake referred to in this act, under the name of “ Coniate ” are the same as those now known under the name of “Conneaut.” There is ample evidence to sustain this finding, and it will not be disturbed. So that without regard to the question of navigability in fact, we have the legislative declaration that in the view of the law, Conneaut Lake is to be considered a public body of water, subject to the right of navigation by the public. When a lake is so small as to be properly regarded as a mere pond, there is no sufficient reason for the public to assert any right in it. But that is not the case here. The navigability of Conneaut Lake as a fact, must under the testimony be conceded. The court below has found from undisputed evidence, that during the period since 1903, the travel upon the lake during the summer, and especially during the excursion season has been large, being estimated as high as 150,000 passengers in a season, and during the summer of 1908, the navigation company operated eight boats, some of them large enough to accommodate 250 passengers. The navigability of the lake is expressly recognized in the agreement between the plaintiff and the navigation company, in which a monopoly of the navigation of the lake is attempted to be secured. The navigation company agrees to maintain sufficient boats on the lake to reasonably accommodate the business, and to accommodate to the full capacity thereof, the traffic to and from Exposition Park. It certainly does not lié in the mouth of the plaintiff company to deny that Conneaut Lake is navigable in fact. If it is navigable in fact, then it is to be so considered in law. Counsel for appellant admit this is the proper test as to rivers, but they deny its application to lakes. Why should there be any distinction?

The use to which the body of water may be put, is the true criterion. If the body of water is sufficiently large and deep to serve the public in providing transportation to any considerable extent upon its bosom, it is sufficient to give the public an easement therein, for the purpose of transportation and commercial intercourse.

We have so few lakes of' large size in Pennsylvania, that the question of the rights of the public with regard to navigable lakes does not seem to have arisen. But in Wisconsin and in Minnesota where lakes abound, the precise point has been decided. In Pewaukee v. Savoy, 103 Wis. 271, it is said, “It is the settled law that submerged lands of lakes within the boundaries of the state belong to the state in trust for public use, substantially the same as submerged lands under navigable waters at common law. Upon the admission of the state into the Union the title to such lands, by operation of law, vested in it in trust to preserve to the people of the state for.ever the common rights of fishing and navigation, and such other rights as are incident to public waters at common law, which trusteeship is inviolable, the state being powerless to change the situation by in any way abdicating its trust.” And in Lamprey v. State, 52 Minn. 181, Justice Mitchell, after an interesting examination and review of the authorities, says, “Our conclusion, therefore, is that upon both principle and authority, as well as consideration of public policy, the common law is that the same rules as to riparian rights which apply to streajns apply also to lakes, or other bodies of still water. In this state we have adopted the common law on the subject of waters, with certain modifications, suitable to the difference in conditions between this country and England, the principal of which are, that navigability in fact, and not the ebb and flow of the tide, is the test of navigability, and that we have repudiated the doctrine that the state has any private or proprietary right (as the king) in navigable waters, but that it holds them in its sovereign capacity, as trustee for the people for public use.” And the rule was laid down, “that where a meandered lake is nonnavigable in fact, the patentee of the land bordering on it takes to the middle of the lake; that where the lake is navigable in fact, its waters and bed belong to the state in its sovereign capacity, and that the riparian patentee takes the fee only to the water’s edge.” The reasoning upon which this opinion rests, appeals to us, as it did to the trial judge, in the present case.

We think it enunciates a sound principle, and sets forth a reasonable rule.

Assuming then, that Conneaut Lake was a public navigable body, of water, when the commonwealth utilized it in connection with its canal system, it took no private property. It merely made use of a body of water, which it already held for the benefit.of the public. It made the same kind of use of it, in part, at least, that it did of the Beaver river, or the Ohio river as part of its canal system. As the trial judge well says: “The authorities of the state conceiving that a further beneficial and advantageous public use could be made of the waters of the lake and the lands thereunder with no material abridgment or impairment of the uses for which it was then held, authorized its further use, without payment of compensation to anyone as a storage basin for the canal. The state did not take or condemn it for such use. It already owned it and subjected it only to additional uses as a public highway for .all the people. What the state was then doing was not destroying public highways existing for the use of the people but endeavoring to provide others for their use.”

When the commonwealth enlarged the lake, and raised its level, it overflowed a strip of ground all around the lake. After the abandonment of the canal and the return of the waters to the former level, the question of the ownership of the strip of land thus uncovered, arose, and it seems to have been decided, that the fee to this land had become vested in the commonwealth. But we do not understand that the decision had any reference to the ownership of the soil under the lake when in its natural condition.

• The defendants are lessees from plaintiff’s grantor and assignor, for terms of 999 years each. The leases described the premises leased to them as bounded by Conneaut Lake and its meanderings. The leases contain covenants that the lessees will not empty any sewer from the leased premises into the lake, and that they will not cut, or transport across the leased premises, any more ice from the lake than they will necessarily consume for their individual purposes, or permit anyone else to do so. .Then follows this clause: “And to have no other right to use, occupy- or enjoy said lake other than is herein specified and permitted.” The penalty for the violation of any one of these covenants is the forfeiture of the lease, the lessors being given the right of re-entry when such forfeiture occurs. Counsel for appellant contend, that navigation of the lake with a steamboat owned by defendants, is a violation of the covenants of the lease, which equity should enjoin. It is difficult to see upon what ground this contention can be based. The language of the lease is not clear, and it comes within the established rule, that in case of doubt and uncertainty as to the meaning of a lease, it is to be construed most strongly against the grantor, and in favor of the grantee. The lessor here was very careful to insert covenants against the discharge of sewerage into the lake, and limiting the amount of ice to be cut. If it had desired to restrict the lessee in his right to navigate the waters of the lake in common with the rest of the public, the least that it could have done would have been to insert an express covenant to that effect. The construction of the lease for which appellant contends is too doubtful to be enforced by equity. If it can be shown that the rights of the lessor have been infringed, we see no reason why an adequate remedy at law may not be had, or why, if the terms of the lease have been violated, ejectment will not lie to recover possession of the premises. Equity is not to be used to settle disputed questions growing merely out of the legal rights of the parties.

The assignments of error are dismissed, and the decree of the court below is affirmed. The costs of this appeal to be borne by the appellant.


text:
    Sheffield Water Company v. Elk Tanning Company, Appellant.

      Deed — Reservation—Exception—Waters—Water companies.

    1. The essential characteristic of a reservation in a deed as distinguished from an exception is that its subject is something that did not exist before, but is created by and grows out of the transaction. An exception applies only where the subject already exists.
    2. Where a deed invests the grantee with the legal title to the whole of the premises described in the grant without excepting an inch of land falling within the description, or any of the structures, buildings or improvements thereon, but reserving to the grantor the right to derive a water supply from a particular stream, using for the purpose the dam, reservoir and pipes constructed and laid upon the premises conveyed, the easement is a newly created right arising from a reservation, and not from an exception.
    3. The reservation of an easement in land such as a water right does not of itself import a use in the grantor to the exclusion of the grantee. If an exclusive use is intended, it should be so expressed in the deed.
    4. A reservation in a deed is exclusively for the benefit of the grantor; it is not a grant of anything to the grantee, but is in derogation of the grant and therefore an abatement. It results that in construing an ambiguous reservation it is to be taken most strongly against the grantor, since he is the person to avoid ambiguity by speaking out.
    5. Where a deed reserves water rights with use of reservoir, pipe lines, etc., but not an exclusive use of the water right and plant, and subsequently the grantee conveys the land to another without mentioning any reservation of water right, but thereafter continues to use the water right, the grantor in the original deed cannot complain of the continued use of the water right by its grantee in the absence of any objection by the grantee in the second deed; and even the latter could not successfully object because it took title with the full knowledge of the visible use of the easement of the water right. The giving and accepting a deed under such circumstances would constitute a parol reservation of the easement.
    Argued May 3, 1909.
    Appeal, No. 360, Jan. T., 1907, by defendant, from decree of C. P. Warren Co., Dec. T., 1906, No. 43, on bill in equity in case of Sheffield Water Company v. Elk Tanning Company.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.

      October 11, 1909:
    Bill in equity for an injunction. Before Lindsey, P. J.
    The facts are fully stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing various exceptions, findings of fact and conclusions of law.

      John G. Johnson, with him Thomas H. Murray, O. C. Allen, W. H. Allen and C. H. McCauley, for appellants.
    The true construction of the Crary deed is that which recognizes a right in the tanning company to use water from the reservoir through the line of pipes for its three tanneries and appurtenant houses.
    If there was any ambiguity in the reservation, it was set at rest by the contemporaneous interpretation of the parties.

      C. W. Stone, with him Edward Lindsey, W. W. Wilbur, Ralph W. Stone and Earle MacDonald, for appellee.
   Opinion by

Mr. Justice Stewart,

The assignments of error which challenge the findings of fact by the court need not be discussed, since the undisputed facts are sufficient in themselves for all practical purposes. Nor need we concern ourselves with the several conclusions of law, except as they relate to the reservation in the deed of conveyance. The determination of the case must rest finally upon the construction of this reservation. The facts are these: For a number of years prior to 1887 three separate tanning plants were operated at or near the village of Sheffield in Warren county by three distinct partnerships. One tannery known as the Tionesta was owned and operated by John McNair & Company; one known as the Horton, by Schoellkopff, Horton & Company, and one known as the Sheffield, by Horton, Crary & Company. Each of these companies had erected a number of dwelling houses upon its own land for the accommodation of its employees. In 1887, with a view to providing a water supply for the several tanneries and the tenements connected therewith, and with a further view to provide a like supply for the inhabitants of Sheffield generally, and protection from fire, these three firms agreed verbally between themselves, to construct and operate at their joint expense a water system. With respect to the stream from which a supply of water was to be drawn each' firm was a riparian owner. The essential features of the agreement were, that the water was to be drawn from Deer Lick Run, and to this end a dam was to be built across" the run on a tract of land owned by Horton, Crary & Company designated as lot No. 237, and a reservoir constructed at a convenient lot on the same spot; the pipes for conveying the water from the reservoir to the several tanneries, and such other places as were to be supplied, were, to be laid upon and over any intervening land owned by either of the firms; one-half the entire expense of the enterprise was to be borne by Horton, Crary & Company, and a one-fourth by each of the other firms, and all accounts of expenditure in connection with the. work and its maintenance,. the expense of which was to be borne in the same proportion, were to be kept by Horton, Crary & Company. Within a short time the water system, including dam, reservoir, pipes leading to and therefrom, pipes, valves, faucets and hydrants in the village- of Sheffield, was constructed at a cost of upwards of $23,000. The agreement was fully executed in all its parts and the water supply furnished Accordingly. In April, 1893, the three firms were taken over by a corporation known as the Penn Tanning Company, each conveying its tannery, lands and appurtenances to this corporation. The Penn Tanning Company continued in operation the several tanneries until April, 1905, during all of which time it was exercising, in connection with the water system that had been established, the same rights that had been exercised and enjoyed by the several firms. In April, 1905, the Penn Tanning Company was consolidated with and merged in the Elk Tanning Company, the defendant in this case, and all the property and rights of this company became and were vested in the latter. The Elk Tanning Company having entered into possession continued the use of the water from Deer Lick Run for the several tanneries and their respective tenements in exactly the same way, without objection or interference, until May, 1906. The Penn Tanning Company while operating the tanneries had contributed its proportion of the money required for the maintenance of the water system. Whether the Elk Tanning Company had done the same is a matter in dispute. However much the original agreement for the construction of the water system was influenced by expectation of supplying the public of Sheffield, it is very certain that the water used outside of the tanneries and their tenements was very inconsiderable, such outside use being confined to seven houses.

Turning now to the plaintiff, the Sheffield Water Company. This company was incorporated May 5, 1906, to supply water to the public at the village of Sheffield, and to such persons, partnerships and associations residing therein as might desire the same. It is enough, without reciting the various conveyances, to know that this company became legally invested with whatever right of property in connection with the water system remained in the three tanning firms after their conveyances to the Penn Tanning Company. On October 13, in the same year, the plaintiff company, having previously notified defendant that its tenants would be required to pay water rentals, and of their refusal to do so, proceeded because of this refusal to disconnect the pipes and lines through which defendant’s tenements were supplied. The defendant company through its employees re-established the connections. The plaintiff company three times thereafter broke these connections, and the defendant company just as often restored them. The plaintiff company then filed the present bill praying that the defendant company be enjoined against interfering further with pipes, hydrants, mains or other property of the plaintiff. The appeal is from the decree awarding a perpetual injunction.

The only rights the plaintiff company has in the water plant constructed originally by the three tanning firms, are such, and such only, as did not pass from Horton, Crary & Company, Schoeflkopff, Horton & Company,'and John McNair & Company to the Penn Tanning Company, under the deeds of conveyance from the former to the latter. Every right, title and interest of each of these firms in the several properties conveyed passed to the Penn Tanning Company, except what was in terms expressly reserved. It follows, therefore, that unless we can find in the written reservation in the deed a right in the plaintiff company to deny the defendant company an equal use with itself .of the water supplied through dam, reservoir and pipes constructed and laid through the joint adventure of the three tanning firms, its turning off the water supply so as to prevent it reaching the properties of the defendant company was a wrongful act, and no injunction should have been allowed restraining the defendant company from doing what it peaceably could to recover its rights. As we have already pointed out, the dam and reservoir were on the land owned by Horton, Crary & Company; the pipes were laid on land owned by the same firm as well as on land owned by John McNair & Company. By deed dated April 22, 1903, the several firms conveyed their respective tanneries and holdings to the Penn Tanning Company, with the single exception that the conveyance from Horton, Crary & Company, did not include lot No. 237 on which the dam and reservoir were located, or lot No. 248. But on the following day Horton, Crary & Company did convey by deed these two lots to the Penn Tanning Company, and it is in this deed that the reservation occurs on which the plaintiff company largely rests its right. It is as follows: “ Reserving, however, unto the party of the first part, their heirs and assigns, the right to maintain a water reservoir on Deer Lick Run in Sheffield township where now located, or else where thereon, and to extend, rebuild and repair the same as may be necessary, with the right to take the water of Deer Lick Run for supplying Sheffield, with the right of Way and entry at all times, and the right to lay and maintain pipes leading thereto and therefrom; second party to contribute towards maintenance of such reservoir and pipe in proportion to the amount of water used. This conveyance is made subject to the restrictions, exceptions, reservations, rights and liabilities contained in the various deeds, conveyances, and assurances to first parties for said premises; and to any rights therein or portions thereof which may have been granted or conveyed by first parties prior to January 1, 1893.” The earlier deed for the other properties of Horton, Crary & Company, contained the following reservation: “Together with the tanning plant, improvements and buildings thereon, reserving a right of way and entry at all times to lay and maintain water pipes for supplying Sheffield.” The deed from Schoellkopff, Horton & Company to the Penn Tanning Company contained this reservation: “Also excepting and reserving all oil and gas wells now upon all of said premises, and all tanks, machinery, fixtures, pipes and appurtenances to the same belonging and all lines.” The reservation in the deed from John McNair & Company was as follows: “Also excepting and reserving all oil and gas wells now upon all of said described premises, and all tanks, machinery, fixtures, pipes and appurtenances to the same belonging, and all pipe lines.”

The case turns largely, if not entirely, on the effect to be allowed the reservation in the deed from Horton, Crary & Company first above recited. Independent of it the plaintiff company is without any right whatever in or upon the premises conveyed by Horton, Crary & Company to the Penn Tanning Company. The learned chancellor who heard the case in the court below adopted what we must regard as a wholly mistaken view of the nature and effect of the clause. In holding it to be not a reservation but an exception, he gave the plaintiff company a large advantage to which it was in no way entitled. The essential characteristic of a reservation as distinguished from an exception is, that its subject is something that did not exist before but is created by and grows out of the transaction. An exception applies only where the subject already exists. “A reservation is the creation of a right or interest which has no prior existence as such in a thing or part of a thing granted. It is distinguished from an exception in that it is of a new right or interest. An exception is always a part of the thing granted; it is of the whole of the part excepted:” Kister v. Reeser, 98 Pa. 1. To the same effect is Moffitt v. Lytle, 165 Pa. 173. The new right created by this transaction was an easement in the land conveyed, to be enjoyed as a thing apart from and in no wise dependent on the ownership of the land. Before the conveyance to the grantee, of course no easement existed in the grantors; before the conveyance they could then do all they or their assigns can now do under the reservation; but they could then do it as' owners of the land, whereas now they can do it only under the easement which is the newly created right. It follows that a very different effect is to be given the deed than the learned chancellor allowed. Nothing was excepted out of the general grant; the deed invested the grantor with the legal title to the whole of the premises described in the grant; it conveyed to the grantee every inch of land falling within the description, whether occupied by dam, reservoir, pipes, tannery or otherwise howsoever, subject only to the right of the grantors, their heirs and assigns, to do those things upon the premises which the grantors had expressly reserved the right to do. It was manifest error, therefore, to hold in answer to plaintiff’s eighth point, “That on the 11th day of October, 1906, the Sheffield Water Company, the plaintiff in. this case, owned, possessed and had the reservoir on Deer Lick Run aforesaid and the aforesaid rights therein and of the water of Deer Lick Run and the said pipes leading thereto and therefrom,” etc. Now what was the right reserved? It was the right to derive a water supply for Sheffield from Deer Lick Run, using for the purpose the dam, reservoir and pipes' constructed and laid upon the premises conveyed, with the right to extend and rebuild the same as might become necessary. No other object is expressed in the reservation than the supplying of Sheffield with water; and this, indeed in point of fact must have been the whole object and purpose of the reservation, since by the deed the grantors were parting with every interest they had outside of Sheffield which could be possibly served through a continuance of the water system. The objects which the court finds the parties had in view in constructing the water system werej to supply the several tanneries, the dwellings of their employees and the village of Sheffield. With the passing of the deed the grantors'were concerned thereafter only as to the latter purpose. In endeavoring to understand just what was meant by the right reserved to take the water from Deer Lick Run for supplying Sheffield, it is important to remember that at the time the reservation was made, and during all the previous years, the supply required by the village, exclusive of the dwellings occupied by the employees of the tanneries, was insignificant when compared with the total consumption. While it is not expressly found as a fact that it amounted to but one per cent of the whole, there was direct evidence uncontradicted to that effect, and the fact found by the court that but seven buildings in Sheffield outside those occupied by tannery employees- were being furnished with water, is strongly confirmatory of the testimony. The evidence in the case would have clearly justified a finding that the prime consideration that led to the construction of the water system, was the advantage that would result to the three firms enlisted in the enterprise, through increased facilities and conveniences in connection with their tanning, and that the furnishing of water to Sheffield was simply incidental. The reservation is to be construed in the light of the situation as it then was. Was it intended that the right reserved was to be so extensive as to embrace the whole and entire village of Sheffield so as to defeat in part, and a very important part at that, the original purpose which the water system was designed to serve? Could the grantee have understood from the reservation that it was denying its operatives living in its houses free water from a plant which had passed to it wi.th the grant? While perhaps it would be doing no violence to the language used in the reservation to hold that such was the intention and understanding, the situation and nature of the subject-matter, and the relation of the parties thereto, make that impossible. It is important here to notice several things. Sheffield was not an incorporated borough with fixed boundaries, but a village with indeterminate limits; it was without legal entity, and therefore incapable of contracting; it could not and did not give the plaintiffs or their predecessors any right or privilege in regard to a water supply. All the plaintiffs could do in the matter of furnishing water in that neighborhood, could be done by any other party having equal facilities. The plaintiff company’s right in this regard went no further than the separate, individual contracts with people residing within that neighborhood carried. Its right to so contract with individuals to furnish water supply to them, was not secured by the reservation, but only the right to derive such water supply as would be required to that end from Deer Lick Run through defendants’ land. That right remains and is unquestioned; but how does it follow that the defendants’ employees occupying fifty-two dwellings belonging to the defendant company, in the same neighborhood and upon the very land conveyed by the three firms- to the defendant company, and who decline to contract with the plaintiff company for a water supply, are to be denied the privilege of securing their water from any other source they can, even from the defendant? If the reply is that the right reserved to the grantors was an exclusive one as to the waters of Deer Lick Run and the defendant company’s water plant for supplying Sheffield, the questions at once occur, where and what is Sheffield? what does it embrace? and, what is far more important, where is such exclusive right expressed in the reservation? Certainly exclusiveness is not expressed, nor does it result by necessary implication. The reservation of an easement in land conveyed does not of itself import a use to the exclusion of the owner: Moffitt v. Lytle, 165 Pa. 173. If it had been intended, it should have been expressed. The nature of the subject-matter and the situation of the parties make it most improbable that it was intended. Having regard to the language of the reservation and the facts as they were at the time it was made, we can find in the reservation nothing more than a purpose to provide against a possible neglect or refusal on the part of the grantors to continue a water supply to the people of Sheffield outside of their own employees. Neither in the text nor any of the circumstances surrounding do we find anything suggesting that the parties had in contemplation a supply of water to Sheffield through an independent agency, except in the event that the grantees failed to furnish it. The last sentence in the reservation, “Second party to contribute towards maintenance of such reservoir and pipe in proportion to the amount of water used,” is of large significance. It certainly contemplated a continued use of both by the grantee; and as the situation then was, it must have contemplated a very large use, for as we have seen, at this time as for years before but a very limited supply of water was required outside of the tannery and the dwellings appurtenant. But what limit was put to this use? It is not contended that the tanneries were excluded. Theretofore there had been no distinction in this regard between the tanneries and the dwellings; both were included in the original design, and both were at that time being served just as though the. dwellings were regarded as part of the tanneries. If the purpose was thereafter to exclude the dwellings, why, in providing that the grantee. should pay towards the cost of maintenance in proportion to the water used, was not a limit put on the use? The fact that no limit was defined, that there is no express exclusion of the dwelling, is to our mind a clear indication that no exclusion was intended. Not only so, but the reservation being silent with respect to a limit, we are not at liberty to supply one;, the reservation must speak as it is written. The learned chancellor in discussing this last sentence wholly mistakes the true rule of construction. We quote from his opinion, "This language is too vague and indefinite to affect the reservation in any manner whatever. It conveys no right to the grantees in the deed to use the water. ... It is therefore void. It says, second party is to contribute towards maintenance of such reservoir, etc., in proportion to the amount of water used. Who shall say what proportion of water second party may use? It may want to use all of it, or two-thirds or one-half of it. The first party may not want to let it use but one-third, or one-fourth, or one-eighth. How is this disagreement to be settled? No court can say how much second party may use from the language of the clause. It is therefore not enforcible and void.” This goes very wide of the mark. A reservation in a deed is exclusively for the benefit of the grantor; it is not a grant of anything to the grantee, but is in derogation of the grant, and therefore an abatement. It results that in construing an ambiguous reservation it is to be taken most strongly against the grantor, since, as was said in Taylor v. Smith, 2 Whart. 432, he is the person to avoid ambiguity by speaking out. “It is a familiar rule that a deed or grant must be construed most strongly against the grantor. This applies with especial force to a reservation or restriction in a deed whereby there is a withholding of something from the grant.” Klaer v. Ridgway, 86 Pa. 529. If there be vagueness and ambiguity here, as there manifestly is, it can only operate to the prejudice of the grantor and not the grantee. The reservation measures and defines the extent of the right, reserved; only inferentially does it measure the extent of the grant, and that by way of deduction or abatement. The reducing factor may be so uncertain as to make it impracticable to tell what, if anything, is to be abated; in which case, if the reservation be not totally void, it is reduced to its narrowest limits as against the grantee. The true and only significance of the sentence in the present controversy is, that it expresses a clear recognition of the right in the grantee to a continued use of the water plant in the manner that such right had theretofore been exercised.

Another feature of the case calls for consideration. Conceding the right of the plaintiff company to supply Sheffield with water through this system, the defendant company can only justify by showing that it also had a right to the use of the water. At the hearing a deed from the Penn Tanning Company to the Pennsylvania Lumber Company, dated May 25, 1903, conveying to the latter lot No. 237 on which were the dam and reservoir of the water system, was offered and admitted. This deed was executed and delivered within three days after the conveyance from Horton, Crary &' Company to the Penn Tanning Company. It contains no reservation whatever with respect to the water privileges or rights. It is argued on behalf of the appellee that after this conveyance, no rights with respect to the water remained in the Penn Tanning Company, and therefore the Elk Tanning Company acquired no right with respect to the water under its deed from the Penn Tanning Company, which was long subsequent. The lumber company is not a party to this controversy; it is not here asserting any rights; nor has it asserted any up to this time antagonistic to the right of the appellee to derive its water supply from the reservoir and pipes upon its land; but on the contrary it has acquiesced in the appellant’s use of the water just as it had been accustomed to use it. We are not now dealing with the lumber company and can therefore adjudicate nothing that would conclude it in any controversy with the appellee; but in determining the rights of the appellee, as against the plaintiff in this controversy, we are fully warranted in having regard to the continued acquiescence on the part of the lumber company, and the general situation at the time of the conveyance to the latter. At the time of the grant from the Penn Tanning Company to the lumber company, the reservoir and dam on lot No. 237 were being maintained and used as the source of supply for the whole water system, and a system of pipes was maintained on the same premises. The water thus derived was used at the grantor’s tannery, other tanneries as well, and in the town or village of Sheffield. The dam, reservoir and pipes were absolutely indispensable to the system. Except for these the supply would be entirely cut off. The occupancy of lot No. 237 for these purposes was actual, visible and notorious; it was wholly inconsistent with the grant of the lumber company, and under all our authorities this would constitute a parol reservation of the easement, and the lumber company would take subject to it. It is only necessary to refer to Randall v. Silverthorn, 4 Pa. 173; Seibert v. Levan, 8 Pa. 383. Where the facts are such as clearly raise an implied reservation, we are quite as much obliged to take judicial notice of it as where the reservation is expressed.

We have not considered the reservations contained in the deeds from Schoellkopff, Horton & Company and John McNair & Company, for the reason that we regard them as unimportant in this connection. The reservations they contain as to pipes, we think beyond question relate to oil pipes, and have no reference to anything in connection with the water system.

Upon a review of the whole case we are of opinion that the injunction was improvidently issued. The injunction is dissolved and the decree reversed at the cost of appellee.