author: Mr. Justice Elkin,

text:
    Spring’s Estate.

      Wills — Trusts and trustees — Trust per autre vie.

    Active trusts may, except when restricted by statute, be created for every purpose not unlawful.
    A trust per autre vie should be sustained for the same reason as an estate per autre vie.
    A gift by a will in fee subject, however, to the condition that the estate shall be held by a trustee with active duties, during the life of the trustee, who is to pay the income to the cestui que trust from time to time as his best interest shall demand, with power in the. trustee to terminate the trust at discretion, is a proper testamentary disposition which the courts will uphold. In such a case it is immaterial that the provisions of the will creating the trust follow an absolute devise of the estate to the cestui que trust.
    An active trust may be created as a protection to the beneficiary because of his inexperience, improvidence, inability to manage his estate, or for any other purpose not illegal, which the benefactor may deem wise or expedient in order to carry out his intentions.

      Trusts and trustees — Accumulations—Act of April 18, 1853, P. L. 503.
    The temporary placing of the control and management of an estate devised in the hands of a trustee with discretion as to the time of termi-' nating the same, and of the disposing of the accumulations for the benefit of the beneficiary and estate, does not bring the trust within the meaning of the Act of April 18, 1853, P. L. 503, which prohibits the permanent accumulation of income, except during the minority of the beneficiary.

      Argued Oot. 26, 1906.
    Appeal, No. 141, Oot. T., 1906, by Anna Melazina Spring, Trustee, from decree of O. C. Allegheny Co., Jan. T., 1906, No. 151, declaring a trust at end in Estate of Mary O’Hara Spring.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Petition to declare a trust at an end.
    From the record it appeared that the trust was created by the sixth paragraph of the will of Mary O’Hara Spring, deceased, which was as follows :
    “ 6. I do hereby give and devise one other of said parts or shares, being the one-third part of said rest and residue of my estate, to Guilielma Fell Alsop, Reese Denny Alsop, Mary Alsop and Elizabeth Febiger Alsop, children of my deceased daughter, Mary Lee Alsop, and their heirs and assigns forever, who shall take and hold the same share and share alike, subject, however, to the following conditions :
    “ The one-third share or part thus designated for the children of my deceased daughter, Mary Lee Alsop, shall be held in trust by my daughter, Anna Melazina Spring during the lifetime of my said daughter Anna Melazina Spring, she, the said Anna Melazina Spring, to have the sole control and management of said last mentioned one-third share of the residue of my real estate and to collect and receive the income therefrom, and to pay out, at her discretion, from said income to the said children of my deceased daughter, Mary Lee Alsop, or their heirs, according to their respective interests, such sums as she, the said trustee, may from time to time deem to be for their best interests; with power, however, to said trustee to terminate said trust with respect to any one or all of the said children of my deceased daughter, Mary Lee Alsop, at^any time that she, the said Anna Melazina Spring may deem-it for the best interests of my grandchildren, or their heirs, so to do. Any such termination of said trust to. be evidenced by writing under-the hand and seal of the said Anna Melazina Spring in the nature of a quit claim deed, or deed of release, declaring such purpose.”
    Reese Denny Alsop, testatrix’s grandson, one of the beneficiaries named in the above-quoted provisions, was the petitioner, Having attained his majority, he petitioned the or-phans’ court to adjudge as at an end as to him the trust created by his grandmother’s will.
    The trustee, Anna Melazina Spring, daughter of the testatrix, filed her answer denying the petitioner’s contentions.
    The court in an opinion by Over, J., held that the trust was terminated.
    On exceptions Oyer, J., and Miller, J., were divided in opinion, and the trustee’s exceptions were dismissed. A decree was entered in accordance with the prayer of the petition.

      Error assigned was the decree of the court.

      M. W. Acheson, Jr., of Patterson, Sterreti <& Acheson, with him B. E. Btewa/rt, for appellant. —
    This trust, involving active duties, and hence being an active trust, the mere giving to a trustee the control and management of the testamentary gift and the collection and disbursement of the income, constitutes a valid purpose, and equity will preserve the trust to give effect to the donor’s right of dominion over her own property. lienee this trust, at least as to corpus, is good notwithstanding a beneficiary’s majority : Dodson v. Ball, 60 Pa. 492; Barnett’s Appeal, 46 Pa. 392; Rife v. Geyer, 59 Pa. 393; Krebs’s Estate, 184 Pa. 222; Cooper’s Estate, 150 Pa, 576; Marshall’s Estate, 147 Pa. 77; Perry on Trusts, sec. 305; Pomeroy’s Equity Jurisprudence, vol. 2, sections 991, 992.
    The doctrine in Hibbs’s Estate, 143 Pa. 217, and Eberly’s Appeal, 110 Pa. 95, of temporary accumulations in the interest of judicious management, is controlling here as to the matter of income; and in any view the statute against accumulations does not impair the validity of the trust as to corpus.
    The circumstances that the provisions creating this trust follow direct words of devise in favor of the beneficiaries, is immaterial, a trust being admittedly thereby clearly created: Sheets’s Estate, 52 Pa. 257; Krebs’s Est., 184 Pa. 222 ; Boies’s Est., 177 Pa. 190 ; Wilbert’s Est., 166 Pa. 113 ; Shower’s Est., 211 Pa. 297.
    The absence of a limitation over has been repeatedly adjudged by this court as immaterial and does not make this any less a trust: Shower’s Est., 211 Pa. 297.

      January 7, 1907:
    The "trust created by the sixth paragraph of this will is an active trust; Krebs’s Estate, 184 Pa. 222; Marshall’s Estate, 147 Pa. 77; Frantz v. Race, 205 Pa. 150.
    This trust is for the life of the trustee, unless the trustee should herself terminate the trust, as provided in the will. A trust, of course, need not necessai'ily be for the life of the beneficiaries: King’s Estate, 210 Pa. 435.

      George G. Burgwin, with him George W. Guthrie, for appellee.
    While it is true that in order to create a valid, active trust it is not necessary expressly to devise the estate to the trustee, yet where'the devise is in the first place made directly to the beneficiary in fee, any subsequent words which it is attempted to construe as reducing the fee to a lesser estate “ must unequivocally show that such was the intention of the testatrix: ” Shower’s Estate, 211 Pa. 297, 302.
    Even if it be conceded that testatrix had the right to and did create a valid, active trust for the accumulation of the minors’ income during their minority, as soon as each one of the minors came of age the trust ceased as to him: Kuntzleman’s Est., 136 Pa. 142; Shallcross’s Estate, 200 Pa. 122; Yarnall’s App., 70 Pa. 335; Ogden’s App., 70 Pa. 501; Koenig’s App., 57 Pa. 352 ; Megargee v. Naglee, 64 Pa. 216.
    An examination of the cases cited by counsel for appellant in which the trust was sustained as active, and the discretionary powers upheld over the income when the beneficiary was of age, shows that it appears in the will in each case that the trust was for coverture, or a spendthrift trust, or to preserve the corpus for remainder-men, or that the. active duties of the trustee were primarily in the mind of the testator, and were specifically imposed.
   Opinion by

Mr. Justice Elkin,

In disposing of the question raised by this appeal, it is important to keep in mind, that the real estate devised being the subject-matter of this controversy, belonged absolutely to the testatrix, who had the undoubted right to subject her testamentary gift to such conditions and limitations as she chose to impose, provided onty, that the limitations and conditions were lawful in purpose and not restricted by statute. It is not for him who receives the gift to fix the quantum of the estate devised, the time when it is to vest absolutely, the method by which it is to be controlled or managed, or the conditions to which it is subjected. As was said by our present Chief Justice in Holbrook’s Estate, 213 Pa. 93, u In Pennsylvania the right of a man to do as he will with his own has always been liberally construed. Accordingly, a donor, not under any obligation to give, may give with such conditions as he pleases, subject only to the restriction that the conditions shall not be clearly illegal.” That a benefactor has the power to restrict the enjoyment of his bounty through the medium of a trustee during the life of the beneficiary is the unquestionable law of this state: Rife v. Geyer, 59 Pa. 393. If the trust can continue during the life of the beneficiary it necessarily follows that it may be operative during the lifetime of the trustee named in the will and in being at the inception ot' the trust. It seems to have been conceded by the learned presiding judge in the court below, that a valid active trust had been created by the express terms of the will of the testatrix, but it was held that the trust terminated when the beneficiaries became of age because of the statute which prohibits the permanent accumulation of income beyond the period of their minority. There is abundant authority to show that a valid active trust was created by the sixth paragraph of the will of Mary O’Hara Spring, deceased: Barnett’s Appeal, 46 Pa. 392; Rife v, Geyer, 59 Pa. 393; Dodson v. Ball, 60 Pa. 492 ; Marshall’s Estate, 147 Pa. 77; Cooper’s Estate, 150 Pa. 576. It is immaterial that the provisions of the will creating the trust follow an absolute' devise of the estate to the beneficiaries: Sheets’s Estate, 52 Pa. 257; Wilbert’s Estate, 166 Pa. 113; Boies’s Estate, 177 Pa. 190; Krebs’s Estate, 184 Pa. 222. Nor does the fact that there was no limitation over affect the validity of the trust, if, as in the case at bar, it clearly appears that it was the intention of the benefactress to create a trust and thus guard her bounty with the protection of a trustee in whose judgment and discretion she evidently had the fullest confidence. It is a primary rule of our cases to give effect to the intention of the testator, and the presumption always is that the intent was lawful. Applying this principle to the present case, there is presented an active trust created by apt words and a testamentary intent clearly expressed, which must be sustained, unless it can be shown that the trust thus created is in violation, of an inflexible rule of law or of statutory restrictions. The burden is on him who undertakes to show the illegal purpose. It seems to have been assumed by the learned presiding judge in the court below, and is suggested by the eminent counsel for appellee here, that in order to support a trust of this character it must be a coverture trust, or a spendthrift trust, or a trust to support contingent remainders. We do not so understand the law. An active trust may be created as a protection to the beneficiary because of his inexperience, improvidence, inability to manage his estate or for any other purpose, not illegal, which the benefactor may deem wise or expedient in order to carry out his intentions: Perry on Trusts, section 305. Or as is stated in Pomeroy’s Equity Jurisprudence, vol. 2, section 991. “'They (active trusts) may, except when restricted by statute, be created for every purpose not unlawful.” We quite agree with the learned president judge of the court below in King’s Estate, 210 Pa. 435, wherein he announced the very sound doctrine that there is just as much reason for sustaining a trust per autre vie as an estate per autre vie.

There remains one question for our consideration in this case. Did the temporary placing of the control and management of the estate devised in the hands of the trustee with discretion as to the time of terminating the same and of disposing of the accumulations bring the trust within the meaning of the Act of April 18,1853, P.'L. 503, which prohibits the permanent accumulation of income except during the minority of the beneficiary? Was the trust under the provisions of the will for accumulation only, or was the accumulation of income an incident to the general purpose thereof ? It is an accumulation designed as a permanent addition to the corpus of the estate beyond the statutory period which is prohibited. It, however, has been frequently held' that accumulation in the nature of the withholding of income temporarily and for the purpose of providing a fund in the interest of the judicious management of the trust is valid, and for such a purpose and to such an extent a testator may validly confer upon a trustee discretionary power over income: Eberly’s Appeal, 110 Pa. 95; Hibbs’s Estate, 143 Pa. 217; Howell’s Estate, 180 Pa. 515. We think the case at bar belongs to this class of cases and is controlled by the rule therein laid down. The trustee is vested with large discretionary powers, and, acting entirely within the authority contained in the will, can pay to the beneficiaries the entire income. The corpus of the estate with afi the incidents of improvements, insurance, taxes, repairs, is under the control and management of the trustee. The trustee is given the power to manage the estate, receive the income, pay out the whole or any part of it for the use of the beneficiaries, and to terminate the trust estate at any time when she shall deem it advisable for the best interests of the beneficiaries. Since the death of the testatrix these active duties have devolved upon the trustee and have been performed by her. She is now exercising her control and management of the estate as directed by the will, and we can see no sufficient reason why the intention of the testatrix should be disregarded. So far as the record discloses, there is no occasion to go into the question of the good faith of the trustee in either paying or withholding the income. The only income unpaid at the time of the filing of the petition, was about $600, which has been since that time voluntarily paid to the appellee. We doubt not that the trustee in the future will continue to pay the beneficiary such portion of the income — or all of it — as she shall deem expedient for his best interests.

Decree reversed and petition dismissed, costs to be paid out of the trust estate of appellee.


source: Caselaw Access Project

license: Public Domain

text:
    Markowitz v. Pittsburg & Connellsville Railroad Company, Appellant (No. 1).

      Railroads — Eminent domain — Competency of witness — Evidence.
    In the trial of condemnation proceedings the competency of witnesses is' a preliminary question to be passed upon by the court after proper examination, before a witness is permitted to testify as to value.
    In such a case the witness should have some special opportunity for observation, and to a reasonable extent, have in his mind the data from which a proper estimate of value ought to be made. He should be familiar with, the property upon which he is asked to fix a value, its area, the uses . to which it may be put, the extent and condition of its improvements and in addition thereto should have some knowledge of the values in the neighborhood and the general selling price of property in the locality at or near the time of the appropriation.
    Argued Oct. 26, 1906.
    January 7, 1907:
    Appeal, No. 85, Oct. T., 1906, by defendant, from judgment of O. P. No. 2, Allegheny Co., Jan. T., 1904, No. 244, on verdict for plaintiff in case of Samuel Markowitz v. Pittsburg & Connellsville Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from award of jury of view. Before Frazer, P. J. '. At the trial objections were made to the competency of various witnesses. All of such objections were overruled.
    Yerdict and judgment for plaintiff for $4,918. Defendant appealed.

      Errors assigned were (1-5) in overruling objections to ' witnesses.

      John S. Wendt, with him Johns McCleave and Edward T. Noble,

    for appellant, cited: Michael v. Crescent Pipe Line Co., 159 Pa. 99; Pittsburg, etc., Ry. Co. v. Vance, 115 Pa. , 325; Friday v. Penna. R. R. Co., 204 Pa. 405.

      John E. Cox, with him A. B. Stevenson, for appellee.
   Opinion by

Mr. Justice Elkin,

The questions raised by this appeal relate to the competency of witnesses "who were permitted to testify as to the value of certain lots of ground appropriated by the defendant company under the power of eminent domain. The competency of witnesses in such cases is a preliminary question to be passed upon by the court after proper examination before a witness is permitted to testify as to value: Michael v. Crescent Pipe Line Co., 159 Pa. 99; Friday v. Penna. R. R. Co., 204 Pa. 405 ; Hope v. P. & W. R. R. Co., 211 Pa. 401. In the case at bar the witnesses were subjected to the preliminary examination as required by the rule. The court passed upon the preliminary question of competency and permitted the witnesses to testify. It is now contended that their examination did not disclose such knowledge of the property and of the values in the neighborhood as to qualify them to testify in the case.

We have said that an essential test of the competency of witnesses, called to give an opinion as to the market value of land, is that they affirmatively appear to have actual personal knowledge of the facts affecting the subject-matter of the inquiry : Michael v. Crescent Pipe Line Company, supra. The witness should have some special opportunity for observation, and to a reasonable extent, have in his mind the data from which a proper estimate of valué ought to be made: P. V. & C. Ry. Co. v. Vance, 115 Pa. 325. He should be familiar with the property upon which he is asked to fix a value, its area, the uses to which it may be put, the extent and condition of its improvements and in addition thereto should have some knowledge of values in the neighborhood and the general selling price of property in the locality at or near the time of the appropriation: Friday v. Penna. R. R. Co., 204 Pa. 405. As we read the testimony of the witnesses whose competency has been objected to, these requirements have been reasonably met. Samuel Markowitz, the question of whose competency is raised by the first assignment of error, is the owner of the lot and the appellee in this case. He was a merchant and had owned the lot for eleven or twelve years. He was familiar with the development of the borough in which it was located and had general knowledge of the values of property in that neighborhood. He knew of the advantageous location of his lot as a business corner, and had frequently been importuned to sell it. His testimony shows that he knew the value of his own property which had been in his possession for many years, and we .are not familiar with any rule which would deny him the right to testify as to its value, when it is taken away from him by condemnation proceedings.

The second, third, fourth and fifth assignments of error relate to the competency of Swartz, Fried, Krone and Donellan as witnessess. Swartz, a merchant, and Fried, a grocer, residents for many years of the adjoining borough of Homestead, were attracted by the business possibilities of Rankin borough, and concluded to start in business there if a favorable site could be secured. They went upon the ground and found the lot, the value of which is the subject-matter of this controversy, suitably located. They examined it, saw its location, considered its desirability as a place of business, and then went around among the neighbors in order to secure information as to values and the general selling price of real estate in the neighborhood. They heard of some sales and in one instance at least, knew the per foot front price for which a lot had been sold. They were seeking information as to general values in the neighborhood, as well as the particular value of the lot in question, because they wanted to purchase it, and in fact did make an offer.for it. Under these circumstances we cannot say there was reversible error in the court below under the discretion which the trial judge has a right to exercise in such cases in admitting ■ this testimony. Krone was in the real estate business and dealt very generally in property located in the borough of Rankin. Iiis office was about ten minutes’ walk from Keating Station, near which the lot of appellee was located. He had been engaged in that business for seven or eight years and was familiar with the values of real estate in the neighborhood, because of the sales made by himself, as well as by reason of the general knowledge obtained through his real estate business. He knew this property, its location, its frontage and depth, its desirability as a business location, the general selling price of lots in the neighborhood and certainly there could be no valid objection to his competency as a witness. Donellan was also in the real estate business. He was the agent in charge of the selling of the lots in the general plan of which the lot in question was part. He was a prominent citizen in the borough and in touch with its business and public affairs for many years. He had been engaged in the real estate business at that place for fourteen years. He had made the sales of many lots in the boi-ough and evidently knew as much about real estate values there as any citizen who might be called as a witness. It was through him as agent of the vendor that the lot of appellee had been sold to him twelve years before the date of its appropriation by the defendant company. He had been dealing in.real estate during all the intervening years and was necessarily familiar with real estate values. It would seem to make a farce of our rules to say that such a witness is not competent to testify because he was not able to fix tbe exact price at which some lots had been sold in that part of the borough where the lot of appellee is located.

We think he was a competent witness. The case was most patiently heard by the learned trial judge who instructed the jury, both as to the law and the facts involved, in a painstaking and impartial manner. In addition to the testimony offered the jurors went upon the ground and viewed for themselves the premises, and from their personal observation had the opportunity of testing the correctness of the testimony of all the witnesses on the question of value.

Assignments of error overruled and judgment affirmed.


text:
    Markowitz v. Pittsburg & Connellsville Railroad Company, Appellant (No. 2).

      Railroads — Eminent domain — Competency of witness — Evidence.
    In a railroad condemnation case it appeared that a witness for the plaintiff had been a resident of an adjoining borough for thirty years, was assessor for twelve years, tax collector for ten years, and in the insurance business for five years. He testified that he was familiar with the values of property in the borough where the land condemned was located, knew of sales, was acquainted with the parties who sold, and had knowledge of the prices received by them for the properties sold. Held, that the witness was competent.
    Argued Oct. 26, 1906.
    Appeal, No. 84, Oct. T., 1906, by defendant, from judgment of O. P. No. 2, Allegheny Co., Jan. T., 1904, No. 242, on verdict for plaintiff in case of Herman Markowitz v. Pittsburg & Connellsville Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from award of jury of view. Before Frazer, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was in overruling objections to the competency of James A. Griffith.
    Yerdict and judgment for plaintiff for $10,695. Defendant appealed.

      January 7, 1907:

      Error assigned was in permitting James A. Griffith to testify.

      John S. Wendt, with him Johns McCleame and Edward T. Noble, for appellant.

      John F. Cox, with him A. B. Stevenson, for appellee.
   Opinion by

Mr. Justice Elkin,

There is but a single assignment of error in this case. It raises the question of the competency of James A. Griffith to testify as to the value of the lots appropriated. What we have said generally on the subject of the competency of witnesses in such cases in Samuel Markowitz v. Pittsburg & Connellsville Railroad Company, in an opinion just handed down applies to the facts in this case. Griffith had been a resident of the borough of Braddock for thirty years, was assessor twelve years, tax collector for ten years and in the insurance business for five years. The borough of Rankin adjoins Braddock and it is clear that the witness because of the business in which he was engaged and the offices held by him, had reliable sources of information on the question of real estate values in the neighborhood. In his testimony he states that he was familiar with the value of property in the borough of Rankin, knew of sales, was acquainted with the parties who sold and had knowledge of the prices received by them for the properties sold. The testimony of this witness was much more favorable to the defendant company than that of many other witnesses who were called and did testify in the case. Even if there was a question as to the competency of this witness we would not be justified in convicting the court below of error under the circumstances, because there was ample testimony independent of this particular writness to submit to the jury on the question of value.

Assignment of error overruled and judgment affirmed.


author: Mr. Justice Stewart,

text:
    Emmel v. Pittsburg Railways Company, Appellant.

      Negligence — Street railways — Collision between car and wagon.

    In an action against a street railway company to recover damages for personal injuries sustained in a collision between a car and a wagon’ at a crossing, it appeared that as the plaintiff approached a street crossing there were two cars coming in opposite directions, each about 300 feet distant. He started to cross, and was caught by one of the cars, and thrown from his wagon and injured. The evidence as to the speed of the car varied. One witness testified that it was going at the rate of twenty-six or twenty-seven miles an hour, another placed it at from ten to fifteen miles an hour. Held, that the case was for the jury.
    Argued Oct. 26, 1906.
    Appeal, No. 78, Oct. T., 1906, by defendant, from judgment of O. P. No. 3, Allegheny Co., Nov. T., 1904, No. 206, on verdict for plaintiff in case of Charles C. Enamel v. Pittsburg Railways Company.
    Before Mitchell, C. J., Eell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Kennedy, P. J.
    At the trial it appeared that in the evening on March 26, 1904, plaintiff, while driving a wagon along Isabella street, in the city of Allegheny, approached Anderson street. The defendant operated on Anderson street a double-track street railway. Plaintiff testified that on coming to the Anderson street crossing he stopped and waited for several minutes. He started to cross when two cars were approaching the crossing in opposite directions, each about 300 feet distant. One of these cars struck his wagon, and he was thrown out and injured. The conflict of testimony as to the speed of the cars is stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $1,600. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Clarence Burleigh, James C. Gray and William A. Chatterer, for appellant,
    cited: Bornscheuer v. Consolidated Traction Co., 198 Pa. 332,

      January 7, 1907:

      Meredith R. Marshall, Thos. M. and Rody P. Marshall, for appellee,
    cited : Kennedy v. Traction Co., 210 Pa. 215 ; Hamilton v. Traction Co., 201 Pa. 351; Shaughnessy v. Consolidated Traction Co., 17 Pa. Superior Ct. 588 ; Callahan v. Phila. Traction Co., 184 Pa. 425 ; Schwarz v. D., L. & W. R. R. Co., 211 Pa. 625.
   Opinion by

Mr. Justice Stewart,

The negligence here complained of was the alleged excessive and dangerous rate of speed at which the car that collided with the wagon plaintiff was driving, was being run. Without any way of determining by accurate measurement of time and distance what the rate of speed was, the evidence with respect to it rested on the observation of bystanders who saw the car approach. It is quite clear that the car which caused the accident was the one going toward Pittsburg; it was the first to reach the point on Isabella street where plaintiff attempted to cross over. When plaintiff first saw this car, before he attempted the crossing, it was, he says, “ a good distance on the other side of Robinson street,” while the car coming from the opposite direction was about 300 feet up on the bridge.” The shorter distance was in favor of the car that collided, but the difference could at best be only a few feet, say twice the length of an ordinary car. Appellant’s argument proceeds on the assumption, that it appears from the evidence of plaintiff’s witnesses that the car coming from Pittsburg was moving at a slow and safe rate of speed; and it is argued that since both cars, at the point of time when plaintiff started to cross the tracks, were about equidistant from the point of accident, and arrived there at almost the same moment, their rate of speed must have been the same. We fail to find warrant for this assumption. But two of plaintiff’s witnesses testify to the rate of speed of the car which caused the accident. One of these, who.testified to an experience that should have qualified him to speak on such matters with a greater degree of accuracy than the ordinary witness, says that he observed this car from the time it appeared at Robinson street; that it was moving at the rate of twenty-six or twenty-seven miles an hour, until within ten or twelve feet of the place of the accident, when attempt was made to stop it. The other, admittedly without experience, testified that in his judgment the speed was ten or fifteen miles an. hour. Each of these witnesses, and a third, testified with reference to the rate of speed of the other car. The first was asked as to its speed when plaintiff’s wagon was knocked against it by the other car, and replied that it was moving very slowly. The second said that it was moving at about half the speed of the other car; that “ the motorman in coming down that steep grade couldn’t slacken up quite enough.” The third says, speaking of the motorman in charge: The man tried to stop; he was moving very slowly.”- This evidence, relating as it does to the speed of this car at a time when the collision of the other car with plaintiff’s wagon, if not inevitable, must have seemed at least likely to happen, and when the motorman in charge was evidently endeavoring to control his car so as not to be involved in it, furnishes no support for appellant’s contention. • Eor all that appears from it, the speed of the car up to that point may have been fully equal to the speed of the other car. What that speed was, and whether it was negligence to maintain it under the circumstances of the case, was a question for the jury. Whether plaintiff was negligent in attempting to cross the tracks with approaching cars each about 300 feet distant, was also a question for the jury. Both issues were found for the plaintiff, under very full and careful instructions as to the law. The assignments of error relate to the refusal of the court to direct a nonsuit. They are overruled.

Judgment affirmed.

January 7, 1907:


author: Mr. Justice Fell,

text:
    Westmoreland Guarantee Building & Loan Association, Appellant, v. Connor.

      Mechanics’ liens — Stipulation against liens — Contract-—Covenants—Mortgage.

    One of several tenants in common may contract with, the others for the improvement of the joint property and his part ownership will not prevent his waiver in good faith of the right of lien both to himself and to his subcontractors. It is only where the contract is made in bad faith for the purpose of misleading and defrauding subcontractors and material men that the stipulation against filing liens will be held invalid.

      Mechanic’s lien — Contract—Failure to set forth contract in claim.

    A mechanic’s lien is purely statutory and a compliance with the statutory requirements is necessary in order to give it validity. When the act of assembly directs specifically that a particular thing shall be done in order to establish a claim, substantial conformity will not answer; there must be a compliance with the requirement.
    Where a verbal contract to do the plastering in a building' operation is superseded by a written contract, and the work is actually done under the written contract, the written agreement must be set forth in the claim filed for a mechanic’s lien, in order to render the lien valid.
    Argued Oct. 29, 1906.
    Appeal, No. 111, Oct. T., 1906, by plaintiff, from order of C. P. No. 1, Allegheny Co.', Sept. T., 1904, No. 160, confirming auditor’s report in case of Westmoreland Guarantee Building and Loan Association of Pennsylvania v. Charles D. Connor with notice to J. A. Wakefield, terretenant.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart,'JJ.
    Reversed.
    Scire facias sur mortgage.
    Exceptions to report of J. McF. Carpenter, Esq., auditor, appointed to make distribution of a fund arising from a sheriff’s sale of real estate.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in overruling exceptions to auditor’s report.

      Wm. A. Griffith, with him David E. Mitchell and J. F. Mc-Naul, for appellant.
    — -A mortgagee will not be affected by any fraudulent contrivances between the mortgagor and another in which he did not participate: McGuire et al. v. Faber et al., 25 Pa. 436; Beck v. Parker, 65 Pa. 262.
    There is no reason why one tenant in common may not contract in good faith with his cotenant for the erection of buildings upon the land held in common; nor why a waiver of the right to file a mechanic’s lien in such a contract should not be sustained: Ballman v. Heron, 160 Pa. 377.
    A mortgagee stands in the same position as a purchaser for value: Hulett v. Mutual Life Ins. Co., 114 Pa. 142; Martin v. Jackson, 27 Pa. 504; Lessee of Heister v. Fortner, 2 Binney, 40 ; Cover v. Black, 1 Pa. 493; 24 Am. & Eng. Ency. of Law (2d ed.), pages 122 and 123; Dempwolf v. Greybill, 213-Pa. 163; Logan v. Eva, 144 Pa. 312.
    Purchasers and creditors stand in the same position and owe the same duty of inquiry for their own protection: Maul v. Rider, 59 Pa. 167; Tabor Street (No. 1), 26 Pa. Superior Ct. 167.
    The plaintiff in this case made full inquiry, followed all requirements of the law and fully protected itself within the provisions of and decisions upon the law: Logan v. Eva, 144 Pa. 312.

      O. P. Robertson, with him J. L. Ralph,

    for appellees, cited: Young v. Lyman, 9 Pa. 449; Wharton v. Investment Co., 180 Pa. 168; Este v. Penna. R. R. Co., 27 Pa. Superior Ct. 521; Wodock v. Robinson, 148 Pa. 503; Vito v. Birkel, 209 Pa. 206.
   Opinion bt

Mr. Justice Fell,

This appeal is from an order confirming the report of an auditor appointed to make distribution of a fund arising from a sheriff’s sale of real estate. The contest was between a mortgage creditor and mechanic’s lien creditors who furnished work and materials after the recording of the mortgage and after the filing in the office of the protHonotary of a building contract which contained stipulations against the filing of liens by the contractor or any other person. The contention of the mechanic’s lien claimants was that the mortgagor had no interest in the land but held title for the owners thereof, who had commenced the building before the mortgage was recorded and who continued the work to its completion; that the building contract was in effect a contract by the myners with themselves and a subterfuge to prevent the filing of liens ; that of these facts the mortgagee through its representative had full notice before any money had been advanced. The contention of the mortgagee was that the transaction between it and the mortgagor was a fair and legal one entered into for its protection and on faith in which it advanced $25,000 ; that the lien creditors, having contracted after the mortgage and building contract were on record, had no standing to contest the mortgage. The learned auditor found that there was no intention on the part of the mortgagee to defraud anyone, but that the facts of real ownership and notice thereof were “ of prime importance and controlling, in so far as priority of right between the contestants is concerned,” and that the fact that the real owners were the actual builders postponed the mortgage to the mechanics’ liens. His views were summarized in this statement: There is no doubt that the plaintiff insisted on the execution of the no-lien contract for its own protection. It is not found that the Building & Loan Association intended to defraud any person, but it certainly assisted in the carrying through of a plan by which those who contributed of their materials and labor to make the property valuable might be subjected to loss, if the plan adopted should be used to accomplish that end.” The facts established beyond dispute by the testimony were these: O. A. Riffle was the owner of a lot and had agreed to purchase an adjoining lot with the intention of erecting a building that would cover both lots. He conveyed the lot he owned to C. D. Connor, and caused the title of the lot he purchased to be put in Connor’s name. Connor had no interest in the land and the placing of the title in him was to serve the business purposes of Riffle, who did not wish to have his bonds outstanding. In April, 1903, Riffle began the construction of a building on the lots, which he carried on to the extent of completing the cellar walls. This work was all paid for and was not in question. While it was in progress, he applied to the Westmoreland Guarantee Building & Loan Association for a loan of $25,000 on mortgage, $10,000 of which was to be used to pay off existing mortgages on the lots, and the balance in erecting the building. He explained to J. R. Morrow, the manager of the association, the plans and estimated cost of the proposed building and his reasons for having the title in Connor’s name. Morrow agreed to make the loan, but required as a condition precedent that releases of liens should be furnished as the work progressed before advances were made, or that the builder’s contract, with a stipulation preventing the filing of liens, should be filed. The latter was furnished. Connor as owner entered into a written contract with J. L. Pyle, a contractor and builder, for the erection of the superstructure in accordance with plans and specifications annexed. From this contract the excavation for cellar and the foundation walls were excluded and the contractor certified that he had done no work before the execution of the contract, and he stipulated that no liens should be filed. This contract was filed May 21, 1903, and the mortgage was recorded the same day. The mortgagee, in pursuance of the agreement made by its manager, Morrow, paid the full amount of the mortgage, $25,000. Of this amount about $10,000 was paid by the mortgagee to procure the satisfaction of prior mortgages, and the balance was paid to Pyle on Connor’s written orders as the work progressed.

Whether Pyle was a joint owner of the land with Riffle or whether he had any interest in it, is not made clear by the testimony, and there is no distinct finding by the auditor on this question. The only finding on the subject is that “ The building in question was erected wholly by and for J. L. Pyle and C. A. Riffle, who made all the contracts for materials and labor furnished and done by the several claimants whose liens are under consideration.” The report of the auditor, however, is evidently based upon his conclusion that Pyle had an interest in the land, and in the discussion of the case it will be assumed that he had. This would not of itself invalidate the stipulation against the filing of liens. One of several tenants in common may contract with the others for the improvement of the joint property, and his part-ownership will not prevent his waiver in good faith of the right of lien both as to himself and to his subcontractors. It is only where the contract is made in bad faith for the purpose of misleading and defrauding subcontractors and material men that the stipulation against filing liens will be held invalid: Ballman v. Heron, 160 Pa. 377; s. c., 169 Pa. 510; Bohem & Bros. v. Seel, 185 Pa. 382. And in those cases it will be invalid only as to those who were parties to the fraud or had knowledge of it before their rights in the property had been acquired.

In this case there is no foundation for the contention that a fraud was contemplated by any of the parties to the agreement or those who were interested therein. The auditor distinctly refused so to find as to the mortgagee, and both Riffle and Pyle, who were called by the lien claimants, testified that the agreement was made in entire good faith without the thought of defrauding anyone.. The mortgagee was loaning money and insisted on a security that could not be impaired nor imperilled by • the filing of mechanics’ liens. This could be obtained only by a release of liens or by a contract prohibiting their being filed. The owner elected to give the latter as more convenient and practical. This agreement was placed on file in the prothonotary’s office, as required by law, and it was notice to all parties furnishing labor or materials. The mortgage given by Connor at the instance of Riffle bound the latter’s interest in the property ,as effectually as if he had executed it himself, and Pyle’s interest, if he had any, was bound in the same way: Stiles v. Bradford, 4 Rawle, 394. The relation established between the parties' for the protection of the mortgage was a legal one and, having been entered into in good faith, the priority of. the lien of the mortgage was preserved.

The claim filed by one of the appellees, Andrew Frazer, was for work and material contracted for with Riffle in April, 1903, before the execution of the mortgage and building contract, but not furnished until August of the same year, after their execution. It is urged that since this contract was made with the owner before the recording of the mortgage, the claimant is entitled to preference over the mortgagee in distribution. Whether this would be the case if the lien were a valid one as against the owner, need not be considered, since it is invalid because of a failure to comply with the requirements of the Act of June 4, 1901, P. L. 431, that the claimant shall set forth in his claim “ A copy of his contract or contracts, if in writing, or a statement of the terms and conditions thereof, if any of these are verbal.” It is set out in the claim that “The contract was verbal, but afterwards the claimant gave the said J. L. Pyle and O. A. Riffle a written bid to do all the plastering, as per plan shown claimant, to furnish labor and material therewith in the erection and construction of said structure, and which had been accepted by said J. L. Pyle and C. A. Riffle,” etc. The claimant testified that he made a verbal offer to do the plastering which was accepted, and he was then told to make a bid in writing, in which should be stated the character of the materials to be furnished, the manner in which the work was to be done, and the prices for the same, which he did, and the bid was accepted.

The auditor reported that this claim was in substantial conformity with the act and, in passing upon the exceptions to his report, he held that the contract was not in writing because the written bid was submitted after the price had been discussed and agreed upon. Nejther position is tenable. A mechanic’s lien is purely statutory and a compliance with the statutory requirements is necessary in order to give it validity. When the act of assembly directs specifically that a particular thing shall be done in order to establish a claim, substantial conformity will not answer; there must be a compliance with the requirement. The written bid submitted and accepted was the final expression of the agreement reached by the parties and all prior oral negotiations were merged in it. It was the agreement under which the work was done.

The order of the court confirming the auditor’s report is reversed at the cost of the appellees, and the balance of the fund arising from the sheriff’s sale, after the payment of taxes and costs, is awarded to the Westmoreland Guarantee Building & Loan Association.


author: Per Curiam,

text:
    Central Trust Company of Pittsburg v. Lappe, Appellant.

      Corporation — Promoter—Lease—Ratification.
    Where a promoter of a corporation takes a lease in his own name for the purposes of the proposed company, and the corporation after it is organized ratifies his act before any withdrawal or disavowal by him, the lease becomes the property of the corporation; and this is the case whether the ownership of the lease is advantageous or otherwise.
    Argued Oct. 29, 1906.
    Appeal, No. 137, Oct. T., 1906, by defendant, from decree of O. P. No. 2, Allegheny Co., July Term, 1905, No. 353, on bill in equity in case of Central Trust Company of Pittsburg v. H. A. Lappe.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an account and an injunction.

      Shaker, J., filed the following opinion:
    This bill is to declare the defendant a trustee for the plaintiff of a certain lease, to require its assignment to the plaintiff, and to enjoin its assignment to any other.
    FINDINGS OK FACT.
    1. In January, 1903, the defendant, H. A. Lappe, with several others, was engaged in organizing a trust company which was afterwards chartered, and is the plaintiff in this case. He became one of the eight or nine incorporators when the charter was obtained, and was elected president immediately upon the organization.
    2. While the subscriptions were being obtained, and the organization effected, the respondent, Lappe, and Mr. Munro, who is now president of the company, and who was with Lappe a promoter of the company, went to Meyer, the owner of the building, No. 2033 Penn avenue, for the purpose of obtaining a lease of the property, with a view of having it used as a place of business of the new company. The building was at that time occupied by a saloon keeper, whose lease expired on April 1. After several interviews with the owner a lease was made with the defendant, Lappe, for one year with the privilege of five more at the rent of $80.00 per month.
    3. This lease was made on January 24, 1903, and the charter of the new company was granted on January 30, 1903. As the company desired to begin business at once, a temporary location was secured at 2000 Penn avenue. The company being advised by the architect who examined the premises at No. 2033 that it would cost $8,000 to make the necessary changes to fit the building for banking purposes, concluded that they would not locate the bank there.
    4. On February 28, 1903, Lappe made a lease of the premises to E. J. Donnelly, who then occupied the premises, for the term of four months from April 1, and this was done to enable Dpnnelly to procure another license, and then have it transferred to another place, Donnelly having taken stock in the company and the parties concerned not wishing to antagonize him. On April 3, the board of directors, Lappe, the defendant, being in the chair, passed a resolution “ That Mr. Lappe be authorized to dispose of the Meyer lease on the best terms possible.”
    5. After the meeting of the directors had adjourned, there was talk among some of them, and it was suggested by one, Mr. Langfitt, that the company ought to be satisfied with getting $500 out of the lease, but this was not agreed to by the others ; this being in the presence of Lappe. Lappe and Munro then vice president, went together to see Mr. Donnelly, to endeavor to sell the lease to him and asked him for $3,500 for it, which he refused to give. On other dates thereafter, negotiations were had with Donnelly, and attempts made to sell him the lease or to relet to him the premises for a higher rent, but without result until April 17, 1903, when Mr. Lappe wrote out a paper which was offered in evidence which he procured Donnelly to sign. This paper reads as follows: “ I hereby agree to lease premises known as 2033 Penn avenue from EL A. Lappe, Trustee, for a period of six years from April 1, 1903, for a monthly rent of $120 payable monthly in advance, and further agree to expend at least $700 for improvements, etc.” This was signed by Donnelly in the bank, and witnessed by the treasurer of the company.
    6. About this time, whether before or after it does not perhaps clearly appear, and is not very material, an attempt was made by Lappe to assign the Meyer lease to the company. For this purpose he caused the attorney for the company to draw up an assignment from himself to the company, accompanied by a consent to such assignment to be signed by the lessor; this being necessary because the lease contained a covenant not to assign without such consent. This paper was attached to the lease and taken by Lappe to Meyer to procure his signature to .the consent, and Meyer refused to sign it.
    7. After April 17, Lappe endeavored to have Donnelly sign a lease to the trust company for $120 a month with certain conditions as to subletting, which Donnelly refused to sign, and some time, perhaps six weeks or two months after April 17, Lappe caused to be written on the paper of April 17, and signed by Donnelly, an acceptance of the above leajse, or offer to lease, signing “ EL A. Lappe, H. A. Lappe, Trustee,” and notifying Donnelly of what he had done, and this was; thereafter treated as a lease.

      8. The rent was paid by Donnelly in cash over the counter of the bank to the treasurer, but Donnelly refused to take a receipt from the trust company, and insisted upon a receipt from Lappe. Lappe thereupon signed some receipts in blank, and left them with the treasurer, who used them in receipting for the rent, sometimes signing “ per B, Treasurer,” or making other differences, which fact, however, appears not to have been known to Lappe. The rent so received was not turned over to Lappe, but was kept with other funds of the bank, and the $80.00 monthly owing to Meyer was paid to him by the bank, and all this with the knowledge of Lappe, who was president of the bank at that time. This continued for about a year when Lappe ceased to be president, and he then made claim to be the owner of the lease in his own right, and collected the rent thereafter himself, and has received the rent from that time until the present, and is paying the rent to Meyer.
    CONCLUSIONS OB' LAW.
    1. Having found as a fact that the respondent was actively engaged with others in promoting the company, which was afterwards formed, and that for the purposes of the company to be formed he took the lease in question, it follows if the company, after it was formed, ratified his act, and especially before any withdrawal or disavowal by him, the lease thereupon so far as the company was concerned, became defendant’s property, and for the lease as between Lappe and the company, the company became liable for the rent, and became in every sense the owner of the lease, whether that ownership was advantageous or otherwise.

      2. We are of opinion that the resolution of April 3, 1903, made in the presence of Lappe, and upon which he himself immediately acted, amounted to such a ratification, especially when taken in connection with the subsequent conduct of the parties.
    3. If this be correct, it follows that the respondent is a trustee of the lease for the company. It would appear from the testimony that Meyer, the lessor, knew that the lease was for the company to be formed. If so Meyer could not object to the transfer to the company, notwithstanding the clause in the lease against assignment, but Meyer is not a party to this bill. As the respondent is receiving rent to a greater amount than he has paid out, he should account to the complainant for what he has received, less proper payments out of the same if any such have been made, and he should be also enjoined from transferring the lease to any other than the plaintiff, or from incumbering the same.
    January 1, 1901:
    Let' a decree be drawn that the respondent is trustee for the complainant of the lease from Thomas Meyer to H. A. Lappe, dated January 24, 1903, and of the lease of April 11, 1903, from H. A. Lappe, trustee to P. J. Donnelly, constituted by the offer and acceptance of that date, that he assign and transfer to the complainant the last mentioned lease; that he be enjoined from transferring either of the said leases to any other person, or from incumbering the same, and that he account with the complainant for the money received by him from P. J. Donnelly, less amounts paid out by him as rent on the Meyer lease, and that he pay the costs.

      Error assigned was the decree of the court.

      John P. Hunter, of Schoyer & Hunter, for appellant.

      Joseph A. Langfitt, with him H. W. Mclntosh, for appellee.
   Per Curiam,

Decree affirmed on the findings of fact and conclusions of la.w by the court below.


author: Me. Justice Stewart,

text:
    King v. Supreme Council Catholic Mutual Benefit Association, Appellant.

      Beneficial associations — Death benefits — Change of beneficiary.

    Where a beneficial association has paid death benefits into court, and a contest has arisen between a minor daughter of the deceased member representing her deceased mother, and a brother of the member, a judgment for the daughter will be sustained where it appears that the mother was originally named the beneficiary, that she was given the certificate of membership by her husband with the assurance that he would never change it, that the wife relying on this assurance paid out of her separate estate the assessments and charges upon the certificate until a time when, without her knowledge or consent her husband surrendered it to the association for a new certificate, in which his brother was substituted as the beneficiary.
    Argued Oct. 29, 1906.
    Appeal, No. 139, Oct. T., 1906, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1905, No. 1,041, for plaintiff on case stated in suit of Mary P. King, Guardian of Julia Conway, a minor, v. Supreme Council Catholic Mutual Benefit Association, interpleaded with John Conway.
    Before Mitchell, C. J., Fell, Brown, Mestrbzat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine ownership of death benefits. Before Frazer, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in entering judgment for plaintiff for $2,000.

      Thomas M. Marshall, Jr., for appellant.
    This certificate or policy of a benefit association creates no vested interest in the beneficiary but only an expectancy, which cannot become a vested or absolute right to the proceeds of the policy until the death of the assured: Brown v. Ancient Order of United Workmen, 208 Pa. 101; Thomeuf v. Knights of Birmingham of Pennsylvania, 12 Pa. Superior Ct. 195; Beatty’s App., 122 Pa. 428; Fisk v. Equitable Aid Union, 20 W. N. C. 290.
    A member of a beneficial association, subject to the laws of the association, is entitled to name his beneficiary. The association has no discretion in the matter, but must issue the certificate to the person named: Scholl v. Sadoury, 42 Pitts. L. J. 43 ; Death Benefit Fund of K. G. E. v. Liberty Castle K. G. E., 5 Pa. Dist. Rep. 385; Supreme Lodge, Knights of Honor v. Martin, 13 W. N. C. 160; Fisk v. Equitable Aid Union, 20 W. N. C. 290 ; Beatty’s App., 122 Pa. 428; Vollman’s App., 92 Pa. 50 ; Jones’s App., 154 Pa. 107; Burst v. Weisenborn, 1 Pa. Superior Ct. 276.
    The naming of a beneficiary is not a contract with him, but merely a designation or appointment: Thomeuf v. Knights of Birmingham, 12 Pa. Superior Ct. 195; Brown v. A. O. U. W., 208 Pa. 101; Love v. Love, 22 W. N. C. 119.
    January 7, 1907:

      Chas. D. Gillespie, with him D. A. Behen, for appellee.
    The deceased waived his right to change the beneficiary: Hoxie v. Home Ins. Co., 32 Conn. 21; Stewart v. Crosby, 50 Maine, 130; Warren v. Crane, 50 Mich. 300 (15 N. W. Repr. 465); West v. Platt, 127 Mass. 367; Farlow v. Ellis, 81 Mass. 229 ; Bidwell v. Pittsburg, 85 Pa. 412; McKnight v. Pittsburg, 91 Pa. 273; Penna. R. R. Co. v. Wolfe, 203 Pa. 269; Broadrick v. Broadrick, 25 Pa. Superior Ct. 225; Krause’s Est., 45 P. L. J. 29; Phoenix Mut. Life Ins. Co. v. Poster, 106 U. S. 30 (1 Sup. Ct. Repr. 18); Insurance Co. v. Slockbower, 26 Pa. 199.
   Opinion by

Me. Justice Stewart,

The benefit association, while necessarily a party to the case, is not a party to this contention; it has paid into court the amount admittedly due on the certificate of membership, for the use of such party as the law shall declare entitled to it. The real parties are, John Conway, here the appellant, who is the beneficiary named in the certificate, and Julia Conway, acting by her guardian, minor daughter of Michael Conway deceased, upon whose life the benefit certificate was issued. The material facts are,"that Michael Conway having been admitted to membership in the association, immediately handed his certificate over to his wife, Mary Ann, who was the beneficiary named therein, at the same time telling her that it was hers, and that he would never change it except it be to make her children the beneficiaries therein ; that the wife relying upon this assurance paid out of her separate estate the assessments and charges upon the certificate, until a time when, without her knowledge or consent, the husband surrendered it to the association for a new certificate, in which his brother John, the appellant, was substituted as the beneficiary. The question arising on these facts is, to whom does the fund belong \ Appellant claims it as the appointee of the member on whose life the certificate was issued, under the laws of the association; the daughter, in the right of the mother, now deceased, contending that under the facts of the case an equity in the fund results to the wife, the first appointee. If the contention be sustained, it is agreed that the daughter properly represents this equity. The case calls for an application of the same principles that governed in the case of Penna. R. R. Co. v. Wolfe, 203 Pa. 269. Here, as there, the association has wholly withdrawn from the controversy by paying the fund into court; and it is not a question in which it has any concern. It was upon the strength of the assurance given by Conway to his wife, that she was to remain the beneficiary except as he should appoint her children instead, that the wife was induced to keep alive the insurance by paying the assessments out of her separate estate. It is impossible to regard this as anything but a present assignment to take effect and attach as soon as the fund came into existence. As between these parties there was nothing to prevent it from so operating. The right of disposition of the fund rested in Conuray, the member. A contract, upon sufficient consideration, to appoint, was held in Penna. R. R. Co. v. Wolfe, 203 Pa. 269, to be enforceable in equity. With quite as much reason, and indeed for the same reason, a contract with the beneficiary named, not to appoint another, is just as enforceable. There the party failed to make the substituted appointment he had promised, and it was held that equity, to prevent a flagrant wrong, would treat that as done which ought to have been done. So here, equity will refuse to recognize an appointment as made, which the party had stipulated he would not make; in other words, equity will estop him from exercising a right he otherwise would have had, to the prejudice of one whom he had misled into an expenditure through reliance upon his promise. Conway having induced his wife to expend her money on this insurance, must be held, by equitable principles, to have waived his right to substitute another beneficiary to her exclusion.

Judgment affirmed.


text:
    Somerset Borough v. Ott, Appellant.

      Boroughs — Contract—Extra work — Abandonment of contract.

    Where a dispute .arises between a borough and a contractor as to whether additional work made necessary by a change in the location of the sewer should be done at the price fixed by the contract for work to be done under the original plan, or at the price fixed for extra work, and such dispute arises before any of the additional work has been done, the contractors are not justified in abandoning the work when half finished, by reason of the dispute. They must perform at least the work originally contracted for, as to which there is no dispute.
    Argued Oct. 29, 1906.
    Appeal, No. 125, Oct. T., 1906, by defendants, from judgment of O. P. No. 3, Allegheny Go., May T., 1902, No. 109, on verdict for plaintiff in case of Somerset Borough v. Charles Ott et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit for breach of contract to construct a. sewer. Before McClung, J. See 207 Pa. 539.
    At the trial it appeared that the defendants had a contract with the plaintiff to construct a sewer. When the work was about half finished a dispute arose as to whether additional work made necessary by a change in the location of the sewer should be paid for as extra work. This dispute not having been settled to the defendants’ satisfaction, they abandoned the work.
    Defendants presented the following points :
    1. The agreements of the defendants in relation to the outlet sewer on West street, as shown in their proposal and contract, was for the furnishing and laying complete of a definite amount of sewer pipe, of definite dimensions, at a prescribed depth, on a definite location on the ground, and for a fixed amount of money, to wit:
    2,066.65 ft. of 8 in. pipe, average cut 8.25 feet $1,446.00
    867.8 ft. of 12 in. pipe, average cut 9.66 feet 650.00
    2,900 ft. of 18 in. pipe, average cut of 15.5 feet 4,437.00
    or a total with tees, manholes, inspection holes as prescribed of $7,483.25. And the prices named therein for the laying of those particular portions of the sewer, cannot be taken as the price or compensation for any extra work, unless such price be that named in the proposals-made by the contractor for sewer of a like depth and dimensions of pipe. Answer: Refused. [2]
    January 7, 1907:
    2. The extension of the outlet sewer being extra work, and there being no price named in the proposal for the doing of such extra work, that is, for the laying of pipe of the size and depth of cut, the defendants were entitled to the same at the actual cost thereof, with ten per cent additional. Answer: Refused. [3]
    3. The extension of the outlet sewer ordered by the engineer being extra work, and the defendants being entitled to do the same on force account, that is, at the actual cost thereof with ten per cent additional, if the jury find that the defendants were not permitted to do said work upon force account, then this was a breach of the contract by the plaintiff; and if the jury further find that defendants were directed and required by the engineer of the plaintiff borough to construct said outlet as extended, by beginning at the creek and proceeding north, then the defendants were justified in refusing to construct said outlet sewer, and in withdrawing from the work. Answer : Refused, [i]

    Yerdict and judgment for plaintiff for $13,878.53. Defendant appealed.

      Errors assigned were (2-4) above instructions, quoting them.

      Homer L. Castle, with him F. W. Jarvis, W. H. S. Thomson and Frank Thomson, for appellant.

      Geo. B. Gordon, with him Wm. Watson Smith, John L. Prestley, Harry J. Hesbit, W. H. Ruppel, C. W. Walker and A. L. G. Hay, for appellee.
   Opinion by

Mr. Justice Fell,

The single question argued on this appeal maybe briefly disposed of. The action was to recover damages for a breach of contract to build a system of sewers in the borough of Somerset. The work was abandoned by the defendants when half finished. They sought to justify this abandonment on the ground that there had been a breach of contract by the borough. The dispute between the parties was as to whether additional work made necessary by a change in the location of a sewer should be done at the price per lineal foot fixed by the contract for work to be done under the original plan, or at cost plus ten per cent, the price fixed for extra work. This dispute arose between the defendants and the borough’s engineer before any of the additional work had been done. The learned trial judge held that a difference of opinion as to the construction of the contract did not justify the defendants in dismissing their men, removing their tools and abandoning the work. This was clearly right. The defendants were bound in any event to perform at least the work originally contracted for, as to which there was no dispute.

The judgment is affirmed.


text:
    Miller, Appellant, v. American Bridge Company.

      Negligence — Master and servant — Vice principal — Fellow servant.

    Where a vice principal assumes the work of an ordinary laborer, and is negligent therein, his employer is not liable to another employee for injuries resulting from such negligence.

      Negligence — Master and servant — Safe place to work — Notice of transitory dangers.

    Where an employer furnishes a safe place for his employees to work, he is under no duty to give notice of transitory dangers which may be caused by the acts of fellow workmen.
    Argued Oct. 29, 1906.
    Appeal, No. 145, Oct. T., 1906, by plaintiff, from order of C. P. No. 3, Allegheny Co., Feb. T., 1905, No. 159, entering judgment for defendant non obstante veredicto.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Evans, J.
    At the trial the jury returned a verdict in favor of the plaintiff for $3,166.

      On a rule for judgment non obstante veredicto, Evans, J., filed tbe following opinion:
    The plaintiff was a carpenter in the employ of the defendant company, and at the time of the accident which gives rise to this suit was working on a bridge across the Ohio river, a short distance below the city of Pittsburg, known as the Ohio Connecting Bridge. His immediate superior was a man by the name of Ward, who had charge of the work on the ground, had power to hire and discharge the men employed upon this work and give the directions to the men employed in the prosecution of the work. The bridge was practically finished and the roadway of the bridge was about twenty-five feet above the top of the stone piers.
    On the day in question the plaintiff was directed by Ward to go down to the top of the stone pier and receive and put in place timbers which would be lowered to him through an opening made in the floor of the bridge. The timber was brought to the opening in the bridge by two workmen ; Ward tied the rope around the timber, and, wrapping the slack end of the rope around an iron upright of the bridge, lowered the timber into position on the top of the stone pier. When the third piece of timber was being lowered the rope became untied, the timber in falling struck the plaintiff and knocked him off the pier into the river, by which he was injured and for which injury he brings this suit against his employer. The plaintiff in his testimony stated that immediately prior to being sent down there by Ward that Ward stated to him that he would warn him each time he was about to lower the piece of timber, and that when the first two pieces were lowered he did so warn him that he might get out of the way, but failed to warn him when lowering the piece which struck him and knocked him off into the river; that the top of the stone pier was about thirty feet long and eight feet wide, and and that he could have gotten to a place of perfect safety had he received the warning promised him by Ward.
    The defendant presented a point for binding instructions, which was refused, and the case came before the court in banc on a motion for judgment non obstante veredicto, under the provisions of the Act of April 22,1905, P. L. 286. It is claimed by the plaintiff that Ward was a vice principal, and that his negligence in tying the rope around, the piece of timber about to be lowered caused the timber to fall, and his failure to give notice to the plaintiff that he was about to lower the timber was the negligence of the defendant.
    There was evidence that the rope was negligently tied by Ward. We may assume for the purposes of the case that Ward was a vice principal, the jury has found that he was under the instructions of the court; but every negligent act of a vice principal resulting in injury to others does not necessarily render his employer liable to an employee. When Ward assumed to tie the rope around the piece of timber about to be lowered and himself had charge of the rope in lowering the timber, he was not representing his employer as a vice principal, but as an ordinary laborer, and as such he was a fellow workman of the plaintiff Miller.. To sustain this proposition we need do no more than cite the case of Ricks v. Flynn, 196 Pa. 263. The case is so nearly parallel to this one that apparently the only difference is that in the former the accident happened in raising a stone and in the present one it happened in the lowering of a wooden timber. The tying of the rope and the lowering of the timber was the act of a fellow employee.
    But it is contended by the plaintiff that the duty to give the warning which Ward had promised Miller to give was an absolute duty upon the employer in furnishing a safe place for his employee to work. There is no allegation here that the top of that stone pier was not a perfectly safe place to work, that all the appliances for lowering the timbers from the roadway of the bridge to the top of the pier were not perfectly safe. No harm could come to the plaintiff in the performance of his duty except through the negligence of those working with him in lowering the timbers from the roadway of the bridge. There is no allegation that his fellow employees were not competent to fill the position and ordinarily careful, and when an employer has furnished safe surroundings, safe tools for his employees to work with, reasonably competent fellow workmen, his duty is performed.
    We find no case in Pennsylvania which squarely, rules the question whether, the duty of the employer to furnish a safe place for his employees to work imposes upon him the duty to give notice of transitory dangers which may be caused by. the acts of fellow workmen, but the courts in many of the states and the Supreme Court of the United States have ruled this question. The case of Martin V. Atchison, Topeka & Santa Fe R. R. Co., 166 U. S. 399 (17 Sup. Ct. Repr. 603), is in all points parallel to the case at bar. The plaintiff was in the employ of the railroad company, the defendant, and on the day of the accident was passing from one point to another in the course of his employment upon a handcar with several other workmen, in charge of a section foreman, who for the purpose of the case was considered a vice principal. They were expecting a work train to follow them, and the plaintiff in particular looked back and mentioned the fact that there was danger of their being run down by the work train. He was instructed by the section foreman to keep his face toward the front and that he, the foreman, would notify him of any danger. He failed to do so, the handcar was run down by the work train, and the plaintiff was injured. Mr. Justice Pbokham, speaking for the court, says: “ The counsel for the plaintiff has argued before us that the defendant must be held responsible because the plaintiff had been directed by the foreman, under whose orders he was placed, to look north while he was on the car and had received the foreman’s assurance that he (the foreman) would warn him of the approach of danger, and that as the foreman failed to do so, it was a failure of the defendant to do something which it was bound as a master to do in furtherance of the obligation it was under to see that the plaintiff had a reasonably safe place in which to perform his work. We do not perceive that the doctrine as to the duty of the master to furnish a safe place for the servant to work in has the slightest application to the facts of this case. There is no intimation in the evidence nor is any claim made that the handcar upon which the plaintiff was riding was not properly equipped and in good repair, and in every way fit for the purpose for which it was used. It was a perfectly safe and proper means of transit in and of itself from the station at Albuquerque to the point where the plaintiff was going to work. The negligence of the section foreman in failing to note the approaching train and give the proper warning, so that the car might be taken from the track, was not neglect of the defendant in regard to the performance of any duty which as master it owed to the plaintiff. If the car was rendered unsafe it was not by reason of any lack of diligence on tbe part of tbe defendant in providing a proper car, but the danger arose simply because a fellow servant of the plaintiff failed to discharge his own duty in watching for the approach of a train from the south.” The above case is of sufficient authority and the reasonings sufficiently sound to justify our following it without further investigation, but the New York courts in several cases have come to the same conclusion for the same reason. In the case of Schott v. Onondaga County Savings Bank, 63 N. Y. Supp. 631, plaintiff was injured while working in a trench through one of the fellow workmen dumping the contents of a wheelbarrow upon his head and shoulders. He alleged that the foreman, who was a vice principal, had promised to warn him before anything should be thrown in the ditch, and this he had neglected to do. The case is on all fours with the present one. After stating the general rule of the duty of the master to provide a reasonably safe place for his employees to work, the court • says: “ Was it required to supervise the executive detail of the work as it progressed, and protect its employees from any and every hazard which its execution involved, including the negligent manner in which the work was being performed ? Certainly no such rule obtains in this state, but, on the contrary, in the case of Hussey v. Coger, 112 N. Y. 614 (20 N. E. Repr. 556), it was said that the master is not ‘ chargeable with the consequences of a place for work, made dangerous only by the carelessness and neglect of fellow servants, or for the negligent manner in which they used the tools and materials furnished them for their work.’ ” The same principle is laid down in McLaine v. Head & Dowst Co., 71 N. H. 294 (52 Atl. Repr. 545) and in Donovan v. Ferris, 128 Cal. 48 (60 Pac. Repr. 519).
    January 7, 1907:
    Let judgment be entered for the defendant non obstante veredicto.

      Error assigned was the order of the court.

      Wm. A. Hudson, with him Joseph Howley, for appellant.

      David A. Reed, of Reed, Smith, Shaw & Beal, for appellee.
   Per Curiam,

J udgment affirmed on the opinion of the court below,


author: Mr. Justice Brown,

text:
    Allegheny County Light Company, Appellant, v. Booth.

      Corporations — Electric light companies — Municipal consent — Aefs of April 29, 1874, P. L. 73, May 8, 1889, P. L. 136 — Laches.
    Where a company incorporated in 1880, under the Act of April 29, 1874, P. L. 73, for the purpose of the manufacture and supply of light, receives in 1881, from a city, the right “to erect and maintain poles and wires for the purpose of conducting electricity to be used for lighting purposes on such streets, lanes, and alleys of the city as may from time to time be required by the company for the purpose aforesaid,” and thereafter the company surrenders its original charter, and takes out letters patent under the Act of May 8, 1889, P. L. 136, providing for the incorporation of companies for the supply of light, heat and power by electricity, the company is not required to have a renewal of municipal consent, but may, under the original ordinance, lay its conduits under the sidewalks of the streets.
    In such a case the right of the company to change its system from poles and wires to conduits, is expressly provided for by the act of May 8, 1889, which gives to such a company the right “to alter, inspect and repair its system of distribution.”
    Where an electric light company is given the right to use the streets of a municipality, it has the right to lay its conduits under the sidewalks inasmuch as the sidewalks are parts of the streets.
    Where an electric light company changes from the pole to the conduit system of distributing electricity, the change is subject to proper police regulation, but if the city makes no complaint of the new construction, and no complaint is made by private owners, for more than six years, the right of the company becomes vested, and a court of equity will not decree the removal of the conduit.
    Argued Oct. 29, 1906.
    Appeal, No. 147, Oct. T., 1906, by plaintiff, from decree of C..P. No. 2, Allegheny Co., Jan. T., 1906, No. 135, dismissing bill in equity in case of Allegheny County Light Company v. Walter W. Booth and C. E. Reichard, trading as Booth & Reichard, Harry Kerr and William Fox, trading as Kerr & Eóx, and Reed JVI. Yincent, John A. Scott and James E. Booth, trading as Yincent, Scott & Company.
    Before Mitchell, C. J., Eell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction to restrain defendants from interfering with a conduit under the sidewalk of the property of Yincent, Scott & Co.
    Cross bill for a mandatory injunction for the removal of the conduit.

      From the record it appeared that Vincent, Scott & Co., by their contractors, Kerr & Fox, were making an excavation for a vault under their sidewalk, and in doing so caused a part of the plaintiffs’ conduit to fall and break. Plaintiffs claimed a vested right to maintain a conduit under the sidewalk. The defendants denied this right.
    Other facts appear by the opinion of the Supreme Court.
    Young, J., after finding the facts and conclusions of law, entered the following decree.
    And now, to wit: July 13, 1906, this cause came on to be heard at this term, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as follows:
    1. The preliminary injunction entered October 24, 1905, is dissolved.
    2. The original bill of complaint is dismissed.
    3. The Allegheny County Light Company, the defendant in the cross bill, is ordered and directed, within thirty days from the date hereof, to remove its conduit from beneath the sidewalk on the west side of Beatty street, from Penn avenue to Kirkwood street, in the city of Pittsburg.
    4. That the Allegheny County Light Company pay the costs of this case.

      Error assigned among others was the decree of the court.

      David A. Reed and James E. Beal, of Reed, Smith, Shaw & Beal, for appellant.
    A sidewalk is as much a part of the street and is subject to the same use and servitudes as the roadway : McDevitt v. Gas Co., 160 Pa. 367; Provost v. Gas Co., 162 Pa. 275; Rafferty v. Traction Co., 147 Pa. 579; Co-burn v. New Telephone Co., 156 Ind. 90 (59 N. E. Repr. 324); Sears v. Crocker, 184 Mass. 586 (69 N. E. Repr. 327).
    The company under its charter and the city ordinance had the right to lay its conduit: Brown v. Electric Light Co., 208 Pa. 453 ; Howley v. Central Valley R. R. Co., 213 Pa. 36; Pittsburgh’s App., 115 Pa. 4; Scranton Electric Light, etc., Co. v. Scranton, 1 Lacka. Jur. 177 ; Allegheny City v. Railway Co., 159 Pa. 411; Hestonville, etc., R. R. Co. v. Phila., 89 Pa. 210; Union Ins. Co. v. Hoge, 62 U. S. 35; Phila. v. Com., 52 Pa. 451; U. S. Bank v. Dandridge, 25 U. S. 64; Nofire v. U. S., 164 U. S. 657 (17 Sup. Ct. Repr. 212).
    January 7, 1907:
    The appellees and their predecessors in title are guilty of laches: Potter v. Scranton Traction Co., 176 Pa. 271; Bradford v. Tel., etc., Co., 206 Pa. 582; Gillespie v. Iseman, 210 Pa. 1; Penna. 17. R. Co. v. Montgomery County Pass. Ry. Co., 167 Pa. 62; Heilman v. Ry. Co., 175 Pa. 188; Becker v. Ry. Co., 188 Pa. 484; Daflinger v. Tel. Co., 48 P. L. J. 37 ; Easton, etc., Pass. Ry. Co. v. Easton, 133 Pa. 505; Messner v. Ry. Co., 13 Pa. Superior Ct. 429; Wahl v. Ry. Co., 158 Pa. 257.

      Levi Bird Duff, with him L. B. D. Reese, for appellees.
    A grant of authority by a city to a telephone company to run and maintain wires over and through the streets does not include permission to lay the wires under, below or beneath the streets: Com. v. Warwick, 185 Pa. 623.
    No municipal consent to lay conduits was given: Allegheny v. Ry. Co., 159 Pa. 411; Ry. Co. v. Allegheny, 31 Pitts. Leg. Jour. 259.
    Independent of the question of consent, and notwithstanding the court may find that prior to the passage of this ordinance the city councils have given general consent to the laying of subways in the streets, the passage of this ordinance was a proper exercise of the police power of the city : Water Co. v. Borough of Darby, 199 Pa. 400; New Castle v. Central District & Printing Telegraph Co., 207 Pa. 371.
    Defendants were not guilty of laches: Bradford v. Tel., etc., Co., 206 Pa. 582; Gillespie v. Iseman, 210 Pa. 1; Kopf v. Utter, 101 Pa. 27.
   Opinion bt

Mr. Justice Brown,

In determining whether the Allegheny County Light Company has the right to construct and maintain conduits under the sidewalks of the streets of the city of Pittsburgh for its wires, we must turn to its charter. It was originally incorporated March 6, 1880, under the Act of April 29,1874, P. L. 73. Assuming that it had the power under its charter to furnish electric light to the public, the city of Pittsburgh, by ordinance of October 31, 1881, authorized it “ to erect and maintain poles and wires for the purpose of conducting electricity to be used for lighting purposes, .on such streets, lanes and alleys of this city as may from time to time be required by said company for the purpose aforesaid.” The poles to be erected were to be of such size and shape and located in such places as the city engineer might direct.

But the appellant was not authorized under its original charter to supply light by electricity: Appeal of the Scranton Electric Light & Heat Co., 122 Pa. 154; and, having surrendered its original charter, letters patent were issued to it on May 29, 1889, under the Act of May 8, 1889, P. L. 136, which is a supplement to the act of 1874. Section 2 of the act of 1889 is as follows: “ Companies incorporated under the provisions of this act for the supply of light, heat and power, or any of them, to the public by electricity shall, from the date of the letters patent creating the same, have the powers and be governed, managed and controlled as follows: Every such corporation shall have the authority to supply light, heat and power, or any of them, by electricity, to the public in the borough, town, city or district where it may be located, and to such persons, partnerships and corporations, residing therein or adjacent thereto, as may desire the same, at such prices as may be agreed upon, and the power also, to make, erect and maintain the necessary buildings, machinery and apparatus for supplying such light, heat and power or any of them, and to distribute the same, with the right to enter upon any public street, lane, alley or highway for such purpose, to alter, inspect and repair its system of distribution: provided, that no company which may be incorporated under the provisions of this act, shall enter upon any street in any city or borough of this Commonwealth until after the consent to such entry, of the councils of the city or borough in which such street may be located, shall have been obtained.” In locating and installing their systems of distributing electricity electric light companies are given by this section the right of eminent domain upon public streets, lanes, alleys or highways outside of city, or borough limits, and, within such limits, they may use the streets with municipal consent. This is a limited right of eminent domain, the limitation upon it being found in the words of the grant of it: Brown v. Electric Light Co., 208 Pa. 453.

The 3rd section of the act of 1889 provides that “ Any association of persons or corporations heretofore engaged in the business of supplying light, heat and power, or any of them, by electricity, under color of a charter or letters patent of this Commonwealth, issued under the provisions of the act to which this act is a supplement, upon accepting the provisions of this act by writing under seal of the company, filed in the office of the Secretary of the Commonwealth, and filing therewith its letters patent or charter, which shall be a surrender, and' acceptance thereof, shall thereupon be a body corporate hereunder and be entitled to and possessed of all the privileges, immunities, franchises and powers conferred by this act upon corporations to be created under the same, and all the property, rights, easements and privileges belonging to said associations and corporations, theretofore acquired by gift, grant, conveyance, municipal ordinance or assignment, or otherwise, upon such acceptance as aforesaid, shall be and hereby are ratified, approved, confirmed and assured unto such acceptors and corporations, with like effect and to all intents and purposes, as if the same had been originally acquired by and under the authority of this act, and such company or corporation shall thereafter be governed by the provisions of this act.” The “rights, easements and privileges” which this appellant had acquired from the city of Pittsburgh by municipal ordinance under its first charter were ratified, approved and confirmed with like effect as if they had been acquired under the act of 1889. They are to use the streets, lanes and alleys of the city for the purpose of distributing electric light. The ordinance is municipal consent to appellant “ to enter upon any public street, lane, alley or highway ” within the city of Pittsburgh for the purpose stated. This includes sidewalks, which are parts of the streets; and that the conduit of appellant was placed under the pavement in front of appellees’ property is not in itself a ground of complaint in this proceeding. The city has the same control over its sidewalks that it has over the driveways : McDevitt et al. v. People’s Nat. Gas Co., 160 Pa. 367; Provost v. Water Co., 162 Pa. 275.

The right granted by the ordinance of 1881, it is conceded by counsel for appellees, is unlimited as to streets, but it is contended that it was for a specific purpose, viz.: “ to erect and maintain poles and wires for the purpose of conducting electricity to he used for lighting purposes,” and, therefore, the only privilege that exists is the one clearly and expressly given. This would mean that the city, in giving the right to erect poles and wires, impliedly forbade the use of any other system; but it could not so restrict the right of the company to change its system, for the supreme power of the state gives it the right to “alter” it. True, the permission is to erect and maintain poles and wires, but at the time it was given they constituted the means universally used in distributing electricity; and with what must be regarded as general permission to the appellant to use the streets for its corporate purposes there went, by the express words of the act of 1889, the right “ to alter, inspect and repair its system of distribution.” . In placing its conduits under the sidewalk in front of appellees’ property the appellant simply altered its system of distribution, and in doing so it but exercised a right with which the city could not interfere, unless in the exercise of it there was a violation of reasonable police regulations, adopted by the city for the protection of persons and property from the danger of the new system.

The error into which the learned court below fell was in holding that the “ company’s sole authority for the occupancy of the highways of the city beneath the surface was the ordinances of November 21,1892; November 25,1892, and May 22, 1895.” The authority was the ordinance of October, 1881, and the ordinances subsequently passed relating to conduit systems cannot affect the right of the company to alter its original system, unless in altering it reasonable police regulations are not complied with. After consent is obtained to use the streets, the right is to use them in altering any system of distribution. The alteration requires no consent, though in making it the company may be subject to proper police regulations.

Turning to the ordinances of November 21, 1892, November, 25,1892, and May 22,1895, nothing can be found in them prohibiting a change by the appellant from the pole to the conduit system of distributing electricity. On the contrary, each ordinance encourages, and, as to a portion of the city, requires the adoption or substitution of the conduit system. Among the provisions relating to the adoption or substitution of this system is section 2 of the ordinance of .November 25, 1892, which is as follows: “ Every such corporation, co-partnership, or individual before entering upon any of the streets, lanes, alleys or highways, aforesaid, for the purpose of constructing thereunder, any conduits, subways, apparatus, devices or means as aforesaid for transmitting, conducting or conveying electricity shall file in the office of the Department of Public Works a full plan showing the location, size and details of such proposed conduits and subways, and all such plans shall be subject to the approval of the Chief of the Department of Public Works, or of the Committee on Public Works, and no corporations, co-partnerships, or individuals shall enter upon any of the streets, lanes, alleys or highways aforesaid, or occupy or do any work upon the same until the said plans have first been approved in writing by the said Chief of the Department of Public Works, or the Committee on Public Works, or, as may be directed by Councils, in accordance with the provision of Section Seventh.” The appellant offered in evidence the plan for its conduit system, which, on July 13, 1899, was approved, in writing, by E. M. Bigelow, Director of the Department of Public Works. The court found that other provisions of the ordinances had not been complied with, and having been of opinion that compliance with them was a condition precedent to appellant’s right to construct its conduit system, dismissed its bill and granted the relief asked for in the cross-bill. Whether other provisions of the ordinances are reasonable police regulations, with which the appellant was bound to comply before altering its system in constructing its underground conduits, we need not now determine. In the year 1899 it constructed the conduit of which the appellees now complain. The city of Pittsburgh has never complained of its construction. The twenty-fourth finding in the cross bill is: “ The Allegheny County Light Company has not been ordered by the Director of the Department of Public Works of the city of Pittsburgh to take up this conduit or to re-lay it.” The finding immediately preceding it is: “It does not appear that any complaint has been made or that any notice has been given or that any action has been taken in regard to the construction or maintenance of its conduit by Yincent, Scott & Company, or any of their predecessors in title from the time of the construction of the conduit in the Summer of 1899 until the fall of 1905.”

With no complaint either by the municipality or the appellees and their predecessors, as private owners, of the construction of the conduit or of its use for more than six years as a part of appellant’s large and expensive system, equity will not now decree its removal. The city has never made complaint of any disregard or violation of police regulations in connection with its construction or use, and it is now too late for either it or the appellees to ask, for the first time, that the appellant be interfered with in exercising what, in this proceeding, must be regarded as a vested right.

The decrees of the court below are reversed. The cross-bill is dismissed, and it is ordered, adjudged and decreed that appellant’s bill be reinstated, and the appellees are perpetually enjoined from interfering with, displacing, removing, destroying or tampering with the subway and conduit of the appellant mentioned in the bill, and from excavating, digging or undermining under or about the said conduit, so as to interfere with it, either by themselves, their agents, servants or employees, the costs on this appeal and below to be paid by the appellees. This decree is without prejudice to the right of the appellant to recover at law any damages which it may have sustained.