author: Mr. Justice Fell,

text:
    McClane, Appellant, v. McClane.

      Railroads — Right of way — Invalid grant — Estoppel—Equity—Retention of bill, . ■ . •
    Where a railroad company.has constructed its road in good faith on lands of a decedent under a deed from persons having no authority to make the grant, and subsequently the devisees file a bill against the railroad company to compel the removal of the road, and it appears that the real purpose of the bill was to compel the defendant company to permit railroad crossings, and that the company had obligated itself to permit crossings,' and it also appears that the lands were enhanced in value by the construction of a railway j and that five out of the seven devisees who were parties to the suit were estopped by their conduct or silence, the court will refuse the injunction, but will retain the bill to enforce if necessary the agreement of the railroad company as to the crossings.
    Argued Oct. 21, 1905.
    Appeal, No. 99, Oct. T., 1905,by plaintiffs, from decree of C. P. Washington Có., No. 1322, in equity, on bill in equity in case of William McClane, Mary McClane, Bessie McClane and Rebecca McClane, a minor, by her next friend, Mary McClane, v. Ebenezer McClane et al., Executors of M. W. McClane, deceased, Arthur Kennedy and the Washington & Canonsburg Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    McIlvaine, P. J., filed an opinion which was in part as follows:
    From the proofs in the case, it is apparent that the interests of each of the seven children of M. W. McClane in the subject-matter of dispute in this controversy are one and the same. Because the four plaintiffs have made their three brothers (who are executors of their father’s will) defendants in place of having them join with them as plaintiffs, does not alter the fact that the principal relief specially prayed for (the mandatory injunction) is for the benefit of all; nor does it alter the fact that the seven joined shortly before the bill was filed in a demand upon the railway company that ‘it substitute a new agreement for the old one, and that they then gave the ultimatum that this must be done or otherwise suit would be entered to compel the company by mandatory injunction to remove from the premises. Let us then see what relation each of these seven persons interested in this farm sustains to the railway company as bearing upon their right to invoke the aid of a court of equity in having it evicted therefrom. And first as to the three brothers who are made defendants.
    It is not denied that they in good faith executed and delivered to the assignor of the railway company the agreement attached to the plaintiffs’ bill wherein they as executors and devisees under the will of M. W. McClane, deceased, granted the right to enter upon the farm in question and occupy the strip of ground now occupied by the Washington & Canonsburg Railway Company for railway purposes and that they received therefor §500 in cash and a covenant to pay the additional sum of §1,500 and that they still retain the sum of §500 and have not offered to return it; it is not denied that these brothers when they made the contract were in possession of this farm, that they cut timber off it and sold the same for the use of themselves, doing business as M. W. McClane’s Sons, and that they reopened an old and abandoned coal mine on the farm and operated it for their joint use in the firm name of M. W. McClane’s Sons; it is not denied that the Washington & Canonsburg Railway Company some months before this bill was filed, under the grant made by these brothers, entered upon this farm and took full and exclusive possession of the strip of land now occupied by its track and that the company had fenced and graded the same, and that this was done by the company in good faith, under a claim of right and in the belief that the grant made by the three brothers was a valid conveyance ; it is not denied that the throe brothers knew that the company so entered and that it was at large expense constructing its road across their farm relying on the validity of the grant in question ; and it is not denied that these three brothers before any question was raised as to the validity of their grant, doing business as M. W. McClane’s Sons, sold ties to this company to be used in the construction of its road and that these ties were made of timber cut from this farm by them.
    Under these facts, we think it is clear that the Washington
      & Canonsburg Railway Company as against these three'brothers is entitled to continue in possession of the strip of ground they have inclosed for its way across this farm, and that they would be estopped from calling in question the validity of the grant they made.
    Let us now consider the case of Mary McClane and Bessie McClane, two of the plaintiffs. These two young ladies lived on the farm in question and the family relation existed between them and the three brothers who made the grant of the right of way across the farm: they knew that the grant had been made by their brothers; they must have known that the brothers were cutting timber off the farm and that they had opened an old abandoned mine and were operating it under the firm name of M. W. McClane’s Sons ; they must have known that the defendant company had entered and taken possession and fenced the way for its track across their farm and that it was expending large sums of money in grading the track and that this was done under a claim of right on the part of the company who relied on the validity of the grant made by the three brothers; and knowing all this they never in any way intimated to the defendant company (until very shortly before the bill was filed) that they would claim that this grant was invalid. The. relation they sustained to their brothers, their desire to have the road built, their seeing its construction from the house in which they lived, their knowledge that the brothers were selling ties made of timber cut on the farm to the railway company to construct its road, would suggest to any reasonable mind that they consented to and approved of the action of the brothers in permitting the railway company to construct its road across the farm and that it would nob be considered as a trespasser in entering thereon for that purpose.. If they were unwilling that the road should be built across the farm, it was their duty to speak to the railway company and make known to it their dissent before it improved the way granted to it. In our opinion they were too late in making known their objections and that they have failed to show any just excuse for this delay; they were in possession of all the facts, they were of full age, and it will not do to now say that they relied upon what their brothers told them as to a question of law concerning which they took no legal advice until the brothers discovered that they might need a crossing for a coal road over the railway track to the track of the steam railroad and put them and their coplaintiffs forward as persons who could best make the attack on the railway company’s title for the joint benefit of all.
    This brings us to the consideration of the other two plaintiffs. William McClane lives in the state of California, and although he did not sign nor verify the bill and was not examined as a witness, yet we must infer in the absence of proof to the contrary, that he did not have knowledge of the facts to which we have referred as being within the knowledge of those that lived on the farm. The burden is on the defendant company to prove the facts out of which an estoppel grows. The other plaintiff, Rebecca McClane, at the time the bill was filed was a minor. As to these two plaintiffs, we are of the opinion that the defendant company has failed to prove such facts as would entitle them to have the bill in this case dismissed unconditionally.
    ifc ifc -t- ■*' $
    On the first question for our decision we are of the opinion that as all the plaintiffs are not estopped from maintaining this bill, the defendant company is not entitled to have it unconditionally dismissed at the plaintiffs’ cost.
    This brings us to the second question for decision. What relief in equity and good conscience are the plaintiffs entitled to under the proofs in this case ? Let us first discover the real ground of complaint as it appears from the proofs. It is plain that it is not the presence of the railway upon the farm in question. No one of those interested, so far as the testimony shows, really wants the defendant company ejected and the operation of the railway stopped. It is admittedly a great convenience to those who occupy this farm, and the proof shows that the presence of the road on the farm, and its operation between Washington and Canonsburg, has probably increased the value of the farm. The real complaint against the railway company is that it will not allow a coal switch from the steam railway to the mine on the farm where coal is being mined. Until the developments in a suit between the defendant railway company and the Meadow Lands Coal Company in regard to the right of the coal company to cross the defendant company’s track on an adjoining farm, brought it to their mind that they might need a switch crossing for coal mining purposes, no objections were made to the presence of the street railway on the farm ; and after it was discovered that the reservations in the grant for switches did not include a switch for a coal road but only switches to manufactories that might be located on the farm, what was demanded by the seven children was not that the company get off, but that a new agreement be executed with provisions for coal switches and some other matters not in the original grant. If the provision for a coal switch had been in the old agreement the claim of irreparable injury, according to the testimony of the plaintiffs themselves, would have been out of the case.
    There are other matters to be considered in connection with this question of equitable relief. One is the position in which the issuing of the mandatory injunction specially prayed for would leave the defendant company. Without any fault on its part it has expended thousands of dollars on the route leading through the McClane farm, after having abandoned what was known as the shaft road route which did not touch this farm. To adopt that route now would require the abandonment of two or three miles of road and the loss of these thousands of dollars. The plaintiffs and the three brothers, who together own the farm, evidently do not want the road abandoned, but they want a new contract. And with the alternative of a new contract or loss of thousands of dollars before it, the railway company would be put by the court (if the mandatory injunction prayed for was granted), in a position of inequality in making this new contract, especially when we consider the fact that five of them are not entitled to a more favorable contract than the one they have. Again, this road is mortgaged to secure innocent bondholders whose interests would be prejudiced if the mandatory injunction was enforced. Again, the road is now in full operation between Washington and Canonsburg, and the public is interested in its uninterrupted operation. A mandatory injunction is a drastic remedy. And in a court of equity the effect of its issuance upon the defendant, upon innocent third parties and upon the public are matters that will be considered, as well as the wrong the plaintiff has suffered. If his wrong can be righted by an action at law or by equitable relief in a form that will not do injury to others, the drastic remedy ought not to be invoked.
    The question, therefore, logically arises : Can such equitable relief be granted in this case ? The plaintiffs pray specifically for an injunction restraining the maintenance and operation of this railway by the defendant company, and that it be compelled by mandatory injunction “ to remove from said premises all material, equipment and the like used in or about or for the construction and operation of a railroad across said premises; ” and it prays generally that the court “ grant such other and further relief as to equity and good conscience belong.” The equitable relief that the plaintiffs are entitled to in equity and good conscience, in our opinion, is a switch crossing for a coal yard to carry the coal mined on the farm to the steam railroad. If this is furnished by the defendant company so that a coal road on either side of the defendant company’s track can be connected therewith, then, in our opinion, the drastic remedy should not be resorted to and no mandatory injunction should be granted. This will certainly meet the claim of irreparable injury made on the part of the two plaintiffs who are not es-topped from making such a claim, and will be giving the other five children more than they are entitled to under the contract, the validity of which we hold they are estopped from denying.
    IIow, then, shall our decree be drawn, to give this relief? Under the pleadings as they now stand there may be doubt whether we could make an affirmative decree in favor of the plaintiffs giving this relief under the general prayer, although the proofs warranted it. But we believe there is another way of reaching this end. During the trial of the case one of the attorneys of the defendant company made in open court verbally an offer to grant to the plaintiffs and their three brothers a switch crossing, the lack of which the plaintiffs’ witnesses complained about, and which one of the plaintiffs at one stage of the examination said was all that she had to complain about. One of the plaintiffs’ attorneys replied to this offer, “ Make your offer in writing. You have never done it since this thing begun.” When court met to hear the case argued, the attorneys for the defendant company complied with this request, and with leave of court and without objection from anyone filed the following paper, which was made part of the record:

      “In the court of common pleas of Washington county, Pa.
    “ William McClane et al.,
    “ vs.
    “Ebenezer McClane et al., and Washington & Canonsburg Railway Company.
    “ No. 1322 in equity.
    “ Stipulation.
    “And now, August 11, 1904, the Washington & Canons-burg Railway Company, by its counsel, offers to the plaintiffs in this case to permit at all times hereafter the construction of such crossings of the railway of the defendant company as may be necessary for the purpose of marketing the coal underlying the land described in the bill filed in this case, the number and location of said crossings and the method of crossing, whether at grade, under or overhead, to be determined by the court, and the cost of construction and maintenance thereof to be borne by either or both parties, as the court at that time may decree.
    “Washington & Canonsburg Railway Company,
    “ By its counsel,
    “ Walter Lyon,
    “ John H. Murdoch.”
    This puts the case in such a shape that justifies the court in filing a conditional decree, and this is the form in which in our opinion it should be :
    “ And now, August 17, 1904, this cause came on to be finally heard and was argued by counsel, whereupon, upon due consideration, it is ordered, adjudged and decreed that the plaintiffs’ bill and prayers for an injunction be, and the same is hereby, dismissed on the following conditions to be performed by the Washington & Canonsburg Railway Company, one of the defendants herein, to wit:
    “ 1. That it construct, or allow to be constructed, a crossing or crossings over its railway track such as may be necessary for the purpose of marketing by the steam railroad south of its railway the coal underlying the land described in plaintiffs’ bill, the location of said crossing or crossings and the method of the construction of said crossing or crossings, whether at grade, under or overhead, and how paid for, to .be agreed upon by the parties to this suit; if, however, such an agreement cannot be readied as to the location or method of construction of said crossing or crossings or how the same shall be paid for, then either party showing this fact may ask that this bill be reinstated and that the pleadings, if necessary, be amended, if the plaintiff that their bill be amended and if the defendant that its answer be amended or that it be allowed to file a cross bill, so that the pleadings as amended shall require the court to determine the location, method of construction and how the costs thereof shall be borne, and the court so far retains control of the case as to allow it to be so reinstated and the pleadings so amended and the conditions herein named enforced.
    “ 2. That the defendant company pay to the executors of M. W. McClane, deceased, the sum of fifteen hundred dollars, the balance of the contract price which remains unpaid.
    “ 3. That the defendant company pay the costs of this proceeding.”
    In reaching our findings of fact as to the contract made between M. W. McClane and Arthur Kennedy, we excluded the testimony of Arthur Kennedy. Being a stockholder in the defendant company in our opinion made him an incompetent witness to testify as to the making of the agreement he had with Mr. McClane. There is testimony in the ease other than that of Mr. Kennedy to justify the finding we have made as to the existence of this agreement.

      Error assigned was the decree of the court.

      T. F. Birch and James I. Brownson, with them J. W and Alvin Bonnans, for appellants,
    cited : Weigold v. R. R. Co., 208 Pa. 81.

      Walter Lyon, of Lyon, McKee Mitchell, with him John Murdoch Son, for appellees.
    January 2, 1906 :
   Opinion by

Mr. Justice Fell,

On a former appeal in this case it was decided that the parties who granted to the corporation defendant a right to construct its road, were without power to make the grant either as executors or as devisees, in both of which capacities they had assumed to act: McClane v. McClane, 207 Pa. 465. The order then made reversing the decree and directing that an injunction be issued was afterwards modified, and the defendants were granted leave to answer. At the second hearing on bill, answer and proof, the main question was that of estoppel. Three of the parties named as defendants were only nominally such, and were not acting in sympathy and interest with the real defendant, the Washington and Canonsburg Railway Company. They had joined with the plaintiffs in giving notice to the railway company that suit would be brought unless their demand for a new agreement, permitting a coal road crossing of its tracks, was complied with, and the relief sought was for the benefit of them as well as of the plaintiffs. The court found that three of the seven persons' interested in the land were estopped to deny the right of the railway company to maintain its tracks and operate its cars, by their execution of the grant and their subsequent conduct; that two others were estopped by their silence and acquiescence with full knowledge; that as to the remaining two, one of whom was without knowledge and the other was not of full age, an estoppel had not been established. It was also found that the company had entered on the land and constructed its road thereon in good faith, believing it had a valid grant; that the location, construction and operation of the road had enhanced the value of the farm and will increase the value of the shares the plaintiffs will be entitled to receive on the distribution of the estate; that the real ground of complaint as it appeared from the proofs was not the presence of the railway on the farm, but the fact that the company would not allow the construction of a coal switch from a steam road to a mine on the farm to cross its tracks; that permission to make this construction would take out of the case wholly the claim of irreparable injury. The company having obligated itself to permit crossings, an injunction was refused, but the bill was retained to enforce if necessary the agreement. This disposition of the case is manifestly equitable. It gives to the, two plaintiffs who have a standing all they can justly claim, because their shares in the distribution of the proceeds of the land when sold will not be diminished. It relieves the company from incurring a ruinous loss in tlie removal of its road from the land in question and other lands on either side of it. The grounds on which it is rested are so fully stated in the opinion of the learned judge of the common pleas that further discussion of them is unnecessary.

The decree is affirmed at the cost of the appellants.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Kelly v. Keys, Appellant.

      Oil and gas lease — Title to mineral — Possession—Ejectment.
    The grant of exclusive privileges to go on land for the purpose of prospecting for oil, the grantor to receive part of the oil mined, does not vest in the grantee any estate in the land or oil, but is merely a license or grant of an incorporeal hereditament; and the grantee, if he has never been in possession cannot maintain an action of ejectment against the grantor, or those claiming under him by a subsequent grant, although at the time of the ejectment oil was being produced in paying quantities.
    The grant of an exclusive right to mine for and produce oil, though it be a mineral, is not a sale of the oil that may afterwards be discovered. When under such a grant oil has been discovered, it is the grantee’s right to produce it and sever it from the soil; so much as is thus severed, belongs to the parties entitled under the terms of the grant, not as any part of the real estate, however, but as a chattel, and only so much as is produced and severed passes under the grant: as to all not produced there is no change of property.
    Argued Oct. 21, 1905.
    Appeal, No. 164, Oct. T., 1905, by defendant, from judgment of C. P. Washington Co., Nov. T., 1904, No. 128, on verdict for plaintiff in case of W. C. Kelly v. A. M. Keys, C. D. Greenlee, and the Southern Oil Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Ejectment for oil in land in Smith township. Before Taylor, J.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was in entering judgment on the verdict and in refusing judgment for defendant non obstante veredicto. that this decree would be asked for, was present in court when it was made and has never taken exceptions to the same nor an appeal therefrom. If the decree was simply voidable or reversible, that fact can be adjudged only on appeal' or certiorari and cannot be set up here. If, on the other hand, the decree was wholly null and void and all the defendant did to secure his discharge from the grip of the capias was done without authority of law, and this case comes under the class of cases of which Tenan v. Kane, 188 Pa. 242, cited by counsel, and Insurance Co. v. Tenan, 204 Pa. 332, are examples, then as we have already said everything that the defendant did under the act of 1836 was wholly null and void, including' the giving of the bond which he gave to the plaintiff, and the plaintiff cannot recover for the breach of a bond that is wholly void. Suit on the bond under such circumstances would not be his remedy. It would be to take a new start and issue an' alias capias. In other words, if the plaintiff would issue an alias capias on this judgment and the defendant would set up the decree of September 20, 1904, as a bar against a second arrest, the plaintiff could reply that the bond and all proceedings thereon were wholly void (not voidable or reversible^) and if the court found this to be so and made such a decree as was made in Ins. Co. v. Tenan, 204 Pa. 332, then the defendant would have to give a proper bond and pursue the proper proceeding de novo to be discharged. In saying this we do not want to be taken as indicating that the court thinks the decree of September 20,1904, wholly void. We were simply assuming that what the plaintiff claims as to this decree under the authority of Tenan v. Kane was correct, and then suggesting the result on certain contingencies. Our opinion, however, is that the decree of September 20, 1904, at most is only reversible by a higher court on appeal on account of error of judgment committed by the court below and not on account of such a total want of jurisdiction ■ in the court below as would make its decree “ void and of no legal effect,” as was the judgment in the case of Tenan v. Cain, 188 Pa. 242, and Ins. Co. v. Tenan, 204 Pa. 332.

      Eugene Mackey and R. W. Irwin, with them Isaac Baum, lames W. Lee, Cornelius D. Scully and Ralph R. Lee, for appellants.
    -The plaintiff, a lessee under a so-called “ oil lease ” who has never been ousted from, or in possession of, the land in question cannot maintain this action of ejectment against the landowner and his privies : Funk v. Haldeman, 53 Pa. 229; Rynd v. Rynd Farm Oil Co., 63 Pa. 397; Union Petroleum Co. v. Bliven Petroleum Co., 72 Pa. 173 ; Dark v. Johnston, 55 Pa. 164; Hicks v. American Nat. Gas Co., 207 Pa. 570; McNish v. Stone, 152 Pa. 457.
    The right granted to the plaintiff, Kelly, by the defendant, landowner Keys, being a mere incorporeal hereditament, and Kelly never having taken possession of the land in dispute under his said right, and what is more to the point, having never been ousted therefrom, it is clear from the authorities that he cannot maintain an action of ejectment to secure such possession : Clement v. Youngman, 40 Pa. 341; Carnahan v. Brown, 60 Pa. 23; Dark v. Johnston, 55 Pa. 164 ; Union Petroleum Co. v. Bliven Petroleum Co., 72 Pa. 173; Hicks v. American Natural Gas Co., 207 Pa. 570.

      Samuel Amsjpoker, with him John M. Buchanan and Arthur B. Barnett, for appellee.
    An agreement to lease land for a term of years, with the exclusive right to bore for and collect oil, giving one-fourth to the lessor, passes a corporeal interest: Chicago, etc., Oil Co. v. U. S. Petroleum Co., 57 Pa. 83.
    The lease in such case is not a grant of property in the oil, but is a grant of possession for the purpose of searching for and procuring oil, and such lease partakes of the character of a lease for general tillage, rather than of a lease for mining or quarrying the solid minerals: Barnhart v. Lockwood, 152 Pa. 82; Wettengel v. Gormley, 160 Pa. 559.
    January 2, 1906 :
   Opinion by

Mr. Justice Stewart,

The defendant, Keys, being the owner of a certain tract of land in Washington county, by instrument in writing duly executed and acknowledged, granted to Kelly, the plaintiff, the exclusive right to mine and produce therefrom petroleum and natural gas, with possession of so much of the land as might be necessary for such purposes, for a term of two years, subject to certain conditions and stipulations which, do not here call for recital. Kelly never exercised any rights under the grant, and never entered into possession of any part of the premises. Subsequently, Keys, claiming that by reason of a default, Kelly had forfeited his rights under the grant, conveyed a like right in the premises to C. D. Greenlee and the Southern Oil Company, the other defendants, who proceeded to explore the property and succeeded in producing oil therefrom in paying quantity.

Kelly, averring compliance on his part with all the conditions and stipulations of the grant under which he claimed, and denying a forfeiture, brought this action of ejectment against the defendants to compel surrender of possession to himself. The action resulted in a verdict for the plaintiff, subject to the decision of the court on a question reserved, viz.: whether ejectment in such case would lie. Upon consideration judgment was rendered upon the reserved point in favor of the plaintiff. The assignment of error that relates to the action of the court on this point, is the only one that calls for present consideration.

In reaching his conclusion on the point reserved, the learned judge gave full recognition to the binding authority of Funk v. Haldeman, 58 Pa. 229, and the cases that follow it, wherein it is held that the grant of exclusive privileges to go on land for the purpose of prospecting for oil, the grantor to receive part of the oil mined, as in this case, does not vest in the grantee any estate in the land or oil, but is merely a license or grant of an incorporeal hereditament.

This court has found frequent occasion to assert its continued adherence to the doctrine of these cases. Only recently, in the case of Hicks v. American Natural Gas Company, 207 Pa. 570, it reasserted it without qualification. Once it was determined that the subject of such a grant was an incorporeal hereditament, and not an estate in the land or oil, it logically and necessarily resulted, that it would not support an action in ejectment. And this view has been steadily adhered to. In no case has ejectment been sustained under such a grant, except where possession had been acquired by the grantee, and he had been wrongfully disseised. In the present case disseizin was, not, and could not be, asserted. Nor could it be contended, that the instrument under which Kelly claimed, though spoken of as a lease, and so denominated in the instrument itself, is in point of fact and law, a lease, notwithstanding it allows possession of so much of the surface of the premises as may be necessary to conduct mining operations. This much will be implied without express stipulation; and the stipulation being expressed in no way distinguishes this from the cases' where such an instrument is held to be merely a grant or license. The court below put no other construction on this, so long as it concerned no one but grantor or grantee; but because the defendants holding under a subsequent lease, being in possession, had produced and were producing oil in paying quantity, reached the conclusion that what had been the grant of an incorporeal hereditament, now that the oil had been found and was being produced, was an estate in the land, since oil was a mineral, and 'therefore part of the land; and that Kelly being entitled to be put in possession of so much of the estate, ejectment could be brought for such purpose.

This line of argument overlooks the very consideration on which the authorities cited rest. In no case is it held that the grant of an exclusive right to mine for and produce oil, though it be a mineral, is a sale of the oil that may afterward be discovered. When under such a grant oil has been discovered, it is the grantee’s right to produce it and sever it from the soil; so much as is thus severed, belongs to the parties entitled under the terms of the grant, not as any part of the real estate, however, but as a chattel, and only so much as is produced and severed passes under the grant: as to all not produced there is no change of property. It is expressly so ruled in Funk v. Haldeman, 53 Pa. 229 ; and the same l’uling was repeated and emphasized in the case next following on the same subject, Dark v. Johnston, 55 Pa. 164. These were the first cases in which grants of rights to explore for oil were considered and passed upon by this court. The rulings therein have been steadily and consistently followed. In this connection it is only necessary to refer to the case of Union Petroleum Company v. Bliven Petroleum Co., 72 Pa. 173, where the grant was the same as in the present case, with the additional fact that there as here, oil had actually been discovered and was being produced, and Barnhart v. Lockwood, 152 Pa. 82.

The reason for the rule thus established, is to be found in the peculiar character of mineral oil. This is very clearly indicated in the earlier cases, where the distinction is drawn between minerals which are fugacious in their nature, such as water, gas and oil, and those which have a fixed situs and are necessarily part of the land; and this distinction has been allowed with controlling significance whenever oil in situ has been the subject of the dispute. Both rule and reason are against the theory that prevailed with the court below, to the effect that the mineral once discovered, all that was in situ became in law part of the real estate.

With the rights of the appellee thus defined and limited by the cases cited above, it is manifest, without discussion, that he is in no position to maintain ejectment for the property. The question reserved was to this very point, and was raised in the first point submitted by the defendant, denying plaintiff’s right to ejectment. The latter should have been affirmed. Its refusal is the subject of the eighth assignment of error, which must be sustained. It is unnecessary to consider the other assignments of error.

Judgment reversed, and judgment is directed to be entered on the point reserved in favor of defendant, non obstante veredicto.


author: Per Curiam,

text:
    Mankey, Appellant, v. Stocking.

      Insolvency — Bond—Capias—Estoppel—Acts of June 16, 1836, P. L. 729, and June 4, 1901, P. L. 404.
    Where a capias ad satisfaciendum is issued on a judgment for slander, and the defendant with the knowledge and consent of the plaintiff’s counsel enters the bond as provided by the Act of June 16, 1836, P. L. 729, to take the benefit of the insolvency laws, and not the bond as provided by the Act of June 4, 1901, P. L. 404, and subsequently takes the benefits of the act of 1836 by proceedings in court in the presence of, and without the objection of plaintiff’s counsel, the plaintiff cannot thereafter maintain a suit against the surety on the bond on the ground that the act of 1901 had repealed the act of 1836, and that the proceedings in court were wholly null and void. If such proceedings were void the bond also was void, and no suit could be maintained upon it.

      Argued Oct. 21, 1905.
    Appeal, No. 191, Oct. T., 1905, by plaintiff, from order of O. P. Washington Co., Feb. T., 1905, No. 101, refusing rule for judgment for want of a sufficient affidavit of defense in case of Grace Mankey v. H. L. Stocking and James S. Stocking.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a bond.
    ■ Rule for judgment for want of a sufficient affidavit of defense.
    McIlvaine, P. J., filed the following opinion:
    On January 21, 1901, the plaintiff in this case in an action of slander in this court obtained a judgment for $6,200 against H. L. Stocking.
    On June 28, 1904, the said H. L. Stocking having been arrested on a capias ad satisfaciendum issued on this judgment secured his temporary release by giving to Grace Mankey, the plaintiff, a bond in the sum of $10,000 with James S. Stocking as surety. This bond was approved by the prothonotary and filed to the number and term to which the writ of capias ad satisfaciendum was docketed. After its approval the prothonotary gave, the sheriff a written notice to discharge the defendant, “ as he has filed a bond sec. leg.” The condition of this bond was “ that if the said H. L. Stocking shall appear at the next term of the court of common pleas of said county and then and there present his petition for the benefit of the insolvent laws of this commonwealth and comply with all the requirements of said law and abide all the orders of the said court in that behalf, or in default thereof and if he fail in obtaining his discharge as an insolvent debtor he shall surrender himself to the jail of the said county, then this obligation to be void, otherwise of force.”
    “ The insolvent laws of the commonwealth ” at the date of the execution of this bond were found either in the enactments of an Act of assembly approved June 16, 1836, P. L. 729, or in an Act of assembly approved June 4,1901, P. L. 404. The act of June 4, 1901, in sec. 42 provides, among other things, for the repeal of the Act of June 16, 1836, P. L. 729 (except secs. 42, 43, 44 and 45, none of which related to the matter now before this court). The Congress of the United States in the year 1898 enacted a bankrupt law in which provision for the discharge of insolvents is made, and it is still in force.
    By reason of the doubt existing as to whether the act of 1901 would become operative so long as the national bankrupt law of 1898 remained on the statute books (see Potts v. Smith Mfg. Co., 25 Pa. Superior Ct. 206), the defendant, H. L. Stocking, evidently gave a bond underand containing the conditions provided for in the act of 1836, and this must have been done with the knowledge and consent of the plaintiff’s attorney who objected to a previous bond offered because not given to the plaintiff as provided in the act of 1836. H. L. Stocking in giving a bond and in attempting to comply with the conditions of this bond, to wit: “ that he should appear at the next term of the court of common pleas of said county and then and there present his petition for the benefit of ‘ the insolvent laws of the commonwealth,’ ” had necessarily to determine before he acted what then were “ the insolvent laws of the commonwealth,” and the form of the bond agreed upon after consultation with the plaintiff’s counsel clearly indicates that the parties treated the act of 1901 as inoperative, for if they had thought it was operative then they would have treated the act of 1836 as having been repealed and the form of the bond would have been different and it would have been given under the direction of the court as is provided for by the fifth section of the act of 1901.
    H. L. Stocking, in accordance with the expressed condition of his bond, appeared at the next term of the court of common pleas (August term) and on August 15 (the first day of the term) presented his petition praying for the benefit of the insolvent laws of the commonwealth as provided in the act of 1836. The court adjudging the petition to be in proper form entertained jurisdiction of its subject-matter (evidently under the act of 1836) and made the following order: “ And now, August 15, 1904, the within petition presented in open court and directed to be filed, and Monday, September 19, next, at ten o’clock fixed as the time for hearing the same in open court, fifteen days’ notice of the time and place of healing to be given by the petitioner to his creditors.” Notice of this hearing was given Grace Mankey by handing to her attorney, — who had issued the capias and who had objected to the first bond and had required another bond, — a copy of this order of the court. On September 19, 1904, none of the creditors of H. L. Stocking (all of whom had been served with notice) entered an appearance, and on September 20, 1904, on motion of the attorney of H. L. Stocking made in open court, the court, after asking if there was any one present who objected, made the following order on the said H. L. Stocking’s petition : “ And now, September 20, 1904, this case came on for further hearing and thereupon it is ordered and decreed that the said H. L. Stocking is hereby discharged from further liability for or on account of the capias issued at No.--term, 1904. That the said H. L. Stocking shall not at any time hereafter be liable to imprisonment by reason of any judgment or decree obtained for the payment of money contracted, accrued or occasioned and due before the date of this order.” The attorney for the writ of capias was present when this order was made and offered no objection to its being made, neither did he appear nor in any way express his consent to such an order being made. It can be fairly inferred from the suit that was afterwards brought on the bond and the statement that has been filed, that he was silent because he was willing for the defendant in the capias to bring about conditions, as he thought, that would forfeit the bond of the defendant, which would be more benefit to his client than to prevent his discharge and secure his surrender to the custody of the sheriff again.
    On December 19, 1904, suit was brought by Grace' Mankey on the bond given on June 28, 1904, and the statement filed by her attorneys avers that there has been a breach of the condition of the bond in that the said petition of H. L. Stocking presented to the court of common pleas and all proceedings thereon are absolutely null and void, and that the surety on said bond of the said H. L. Stocking is liable for the penal sum of said bond because the requisitions of the Act of assembly of June 4,1901, P. L. 404, had not been complied with.
    The surety on said bond appeared and filed an affidavit of defense and avers in substance, first, that H. L. Stocking was discharged by this court and that thereby the conditions of his bond were satisfied ; second, that the bond, if taken as given under the act of 1901, is void in toto as it contains conditions different than those required by that act; that it was taken for the use of the plaintiff alone and not all of the defendant’s creditors and was not taken under the direction of the court; third, that the act of 1901 was not in force when the bond was given by reason of the existence of the national bankrupt act of 1898.
    The plaintiff now moves for judgment for want of a sufficient affidavit of defense. The facts in this case are not disputed and the whole defense can be summed up by saying that the plaintiff’s statement fails to show a good cause of action.
    To our minds it is evident that the bond in this case was filed under the provisions of the act of June 16, 1836, and as the plaintiff’s counsel wanted the bond taken in the name of the plaintiff and not the commonwealth and made no suggestion that the court ought to fix the security, he evidently acquiesced in the filing of such a bond and the temporary discharge of the defendant by order of the prothonotary. The first question then that suggests itself is this : Can the plaintiff now claim that all the stops taken by H. L. Stocking under that bond are void because not in accordance with the provision of the act of 1901 and still the bond be good against the surety? To make the claim that all the proceedings taken by the del'eiidant should have been under the act of 1901, is the counsel not in danger of being “ hoisted by his own petard? ” If the act of 1836 as to the manner that the insolvent is to proceed is no longer in force, is it in force as to the form of the bond and the manner in which it is to be given ? and if not, is not the bond given by the defendant just as null and void as any other step that he took in the proceeding to be relieved from imprisonment ? It cannot be pretented under all the facts of the case as they are made to appear in the affidavit of claim and the affidavit of defense that the bond given was “ the security for his appearance, surrender and compliance with the decrees of the court and the requirements of the act of 1901 such as the court might deem requisite.” The court never saw the bond, it never deemed 110,000 the required sum in which the bond should be given or that James S. Stocking was a good and sufficient surety. We are therefore of the opinion that the plaintiff cannot blow hot and cold. If the proceedings taken by H. L. Stocking under the act of 1836 to be relieved from arrest as an insolvent are void because taken under that act and not under the act of 1901, then they are wholly void, which would include the giving of the bond as given, and if the bond is void then no recovery can be had on it. I know there is a class of cases which are. authority .for the contention than an obligor of a bond given in a proceeding of this kind cannot be relieved from his obligation because of a slight difference between the condition in his bond voluntarily given and that required by an act of assembly, or on account of some irregularity for which he is wholly responsible. But that is not the case at bar. The bond filed by H. L. Stocking now sued upon was taken in the name of the plaintiff, as provided in the act of 1836, at the suggestion of her counsel who objected to the first bond because it was taken in the name of the commonwealth, and the face of the bond it- ' self and the circumstances under which it was given was notice to the counsel for the plaintiff that the bond was not the one required by the fifth section of the act of 1901; he knew or should have known that H. L. Stocking’s counsel were acting under the act of 1836 and treating the act of 1901 as inoperative, and he at least passively acquiesced in the action taken by Stocking to obtain not only his temporary but his final discharge. In other words, the bond in question when given (and as understood by both the obligee and obligors) meant by the words, to wit: — “ the insolvent laws of the commonwealth ” and “ with all the requisition of said laws,” — the act of 1836 and not the act of 1901. If then the defendant complied with the conditions of his bond by complying with “ all the requisitions of the act of 1836 ” and was discharged by the court as an insolvent debtor, how can the plaintiff aver a breach of the condition of the bond because he did not comply with the requisitions of the act of 1901 and say that what he did in complying with the conditions of the bond given under and to comply with the terms of the act of 1836 is “ wholly null and void,” without also saying that the bond which was given to compel him either to do what he did or pay $10,000 is also void ? The facts before us certainly make a very, different case from those cited in the very exhaustive and able brief of the plaintiff’s counsel to show that a bond given by an applicant for the benefits of the insolvent laws of the commonwealth is often held to be valid even though it may not strictly conform to the -requirements of the law as to the manner of . giving it or in its conditions. We are therefore of the opinion that if the act of 1836 was repealed and the act of 1901 was in force when the bond was given and “ all proceedings thereon ” taken by the court at the instance of the defendant in his endeavor to comply with the conditions of the bond “ are absolutely null and void ” then the said bond was also wholly null and void and the prothonotary’s direction to the sheriff to discharge the defendant unauthorized because he had not “ given a bond ‘ sec. leg.’ ” and the plaintiff’s remedy was either against the Prothonotary for directing the discharge of the defendant until he had given a bond sec. leg. or to appear and resist the final discharge of the defendant and secure his surrender to the sheriff or to issue an alias capias ad satisfaciendum.
    This brings us to the consideration of another question and that is the order of discharge made by the court on September 20, 1904. It is certain that the court is given jurisdiction to discharge an insolvent debtor who may have been arrested on a capias ad satisfaciendum, and this is so under both the act of 1836 and the act of 1901; and it had jurisdiction to determine at the date of the hearing whether the act of 1901 was inoperative by reason of the national bankrupt act of Congress passed in 1898 and the act of 1836 still in force; and although no opinion is filed it must be taken that the court duly considered all questions involved and after having done so found that the defendant had complied with the requirements necessary to entitle him to a discharge and thereupon discharged him. If the bond was valid and binding on the defendant, it certainly was the duty of the court on September 20, 1904, to determine whether he had so fully complied with the conditions thereof as to entitle him to a final discharge from imprisonment on the capias or whether his failure to comply with these conditions was such that he ought (to avoid paying the penalty of his bond) surrender himself to the custody of the sheriff to again meet the demands of the capias ad satisfaciendum. The court said, “ you have complied with the conditions of your bond; you can go and you need not surrender yourself to the sheriff.” The plaintiff now wants the penalty of the bond because the plaintiff did not surrender himself to the sheriff, — a thing the court in legal effect told him he need not do.
    The plaintiff’s counsel who issued the capias had full notice

      And now, July 12, 1905, rule for judgment for want of a sufficient affidavit of defense, discharged.

      Error assigned was the order of the court.

      R. W. Irwin, of Irwin Morgan, with him L. R. Boyd, for appellant,
    cited: Farmers’ Bank of Reading v. Boyer, 16 S. & R. 48; Horton v. Miller, 38 Pa. 270; McDonough’s Case, 37 Pa. 275; Egbert v. Darr, 3 W. & S. 517 ; Wells v. Bentley, 3 Pa. 324; Stroop v. Gross, 1 W. & S. 139; Wright v. Keyes, 103 Pa. 567; Beacom v. Holmes, 13 S. & R. 190; Lease v. Asper, 2 Rawle, 182 ; Haines v. Levin, 51 Pa. 412 ; Slutter v. Kirkendall, 100 Pa. 307; Wolfram v. Strickhouser, 1 W. & S. 379 ; Detwiler v. Casselberry, 5 W. & S. 179 ; Greenwaldt v. Kraus, 148 Pa. 517; Frick v. Kitchen, 4 W. & S. 30; Stout v. Quinn, 9 Pa. Superior Ct. 179.

      James I. Brownson, with him John W. Borman, A. M. Todd and J. A. Wiley, for appellee.
    The decree which the court makes granting or refusing the discharge is conclusive in a suit on the bond, and conclusively establishes the fact that the insolvent complied with the requirements of law so as to entitle him to a discharge : Sheets v. Hawk, 14 S. & R. 173; Frick v. Kitchen, 4 W. & S. 30 ; Lincoln v. Williams, 12 S. & R. 105; Heilner v. Bast, 1 P. & N. 267; Lease v. Asper, 2 Rawle, 183 ; McGovern v. Hoesback, 53 Pa. 176 ; Shriver v. Commonwealth, 2 Rawle, 206; Gallagher v. Kenedy, 2 Rawle, 163.
    January 2, 1906 :
   Per Curiam,

Judgment affirmed on the opinion of the court below.


author: Pee Cueiam,

text:
    Dollar Savings Fund & Trust Company, Appellant, v. Pittsburg Plate Glass Company.

      Corporations — Stock—Certificate of stock — Transfer agent — Forgery—Negligence.

    Where a stock certificate shows on its face that it “will not be valid unless countersigned” by a transfer agent, anyone who takes the certificate without the signature of the transfer agent does so at his peril.
    Where a person lends money on a certificate of stock on which the signature of the transfer agent is forged, he cannot allege that the corporation issuing the stock was negligent because after the certificate had been signed by its president and secretary, and the seal of the corporation attached, it left it where a clerk had access to it, and took it and forged the name of the transfer agent on it. It is only where a certificate is genuine on its face, although improperly issued, that the question of the negligence of the corporation can be raised.
    Argued Oct. 23, 1905.
    Appeal, No. 179, Oct. T., 1904, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., May T., 1904, No. 282, on demurrer to statement in case of Dollar Savings Fund & Trust Company v. Pittsburg Plate Glass Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass for the alleged negligent issue of a stock certificate.
    Mc Clung, J., filed the following opinion:
    In the present discussion we must, of course, take as absolutely true every fact well pleaded in the statement, and must also draw therefrom every reasonable inference which a jury might draw in plaintiff’s favor.
    The sixth cause of demurrer is properly criticised as “ speaking ” because it involves an inference of fact against the averments of the declaration, and hence we disregard it.
    Allowing plaintiff every legitimate advantage, we should regard him as averring that the wrong done, in issuing the stock certificate, was done by C. H. Alward, a clerk or ordinary employee of defendant company. To assume that the certificate was abstracted and Carr’s name signed by an outsider would be against plaintiff, because as to such party the responsibility of defendant for his acts would not be as great as it would be for those of an employee. On the other hand, if Alward occupied a higher position, with higher and greater powers with respect to the issue of these stocks, whereby defendant’s responsibility for his acts was increased, it was plaintiff’s duty to aver these facts in his narr., and this he has not done.
    We cannot fall in with plaintiff’s contention that the name, “The Union Trust Company of Pittsburg,” printed in the forms with a blank for the signature of the proper officer, is a signature by the trust company without having the blank filled. We take it that the necessity for the signature of some officer is well known in such cases, and plaintiff certainly never looked, upon the Carr signature as surplusage. We may treat Carras the proper officer of the company, because otherwise plaintiff is in no better condition, in that he has not even a pretended signature of the party who was to countersign.
    We are, then, to deal with the following as admitted facts, viz.:
    1. The defendant company caused the certificate for seventy-five shares of stock to be signed by its president and secretary, and the seal of the corporation attached, and left it where Al-ward, a clerk, had access to it, and could, and did, take it out of the book, sign the name of Carr in its proper place, thus making it apparently complete, and then transferred it to Lillian K. Alward, who, by pledging it to plaintiff, obtained a large sum of money.
    2. This certificate contained below the signatures of the president and secretary, and above the seal the following, viz.: “ This certificate will not be valid unless countersigned by the Union Trust Company of Pittsburg, registrar of transfers.”
    3. Although the defendant company was notified some months before it was pledged to plaintiff that this certificate had been taken from the book and had not been registered, it did not advertise this fact, nor in any way attempt to warn persons to whom it might bo offered for sale or as collateral security.
    If plaintiff prove all these facts, will it have a case which the court will submit to the jury ?
    We assume that if these certificates are binding upon defendant as between it and plaintiff, there can be a recovery here of damages either to the amount of the loan or the value of the stock. We need not now concern ourselves as to this.
    Plaintiff contends :
    1. That the certificates are valid and binding without countersigning by the registrar; or
    2. That if not, then a jury would legally be justified in finding the defendant guilty of such negligence in dealing with the certificate as to estop it from repudiating it, even if Carr’s name was forged by Alward or by his procurement.

      The Act of June 24,1895, P. L. 258, provides that any stockholder of a corporation shall be entitled to receive a certificate of the number of shares standing to his credit on the books, “ which certificate shall be signed by the president or vice president or other officer designated by the board of directors, countersigned by the treasurer and sealed with the common seal of the corporation.”
    This, however, does not prevent the corporation, if it is willing to give such certificates, from taking such further precautions, as it sees fit, to provide against the simulation of such signatures ; and if a party who receives a certificate signed and sealed as provided by the act of assembly, is, at the same time, given express notice that the certificate is not good and will not be recognized as a certificate until it has another signature, such party cannot then pay money for such stock and claim that the company is in equity estopped to deny the validity of the certificate, and bound to recognize the party as a stockholder or to pay him damages, if the certificate was in fact fraudulently or improperly issued.
    In the present case, the notice of this requirement was right on the face of the certificate and preceded the seal of the corporation.
    It matters not that the good effects of the additional precaution may, in this particular case, have been nullified, by its leading to the sealing and signing by president and treasurer in blank — the fact still remains that this was not a complete certificate until it had the signature of the Union Trust Company, or practically the signature of James S. Carr. His signature was just as necessary to the completion of the certificate as was the signature of either the president or the secretary.
    This brings us to the main question in the case, viz.: Whether or not the proof of the fact that the president and secretary signed this certificate and sealed it and left it where it could be taken by an employee and it was so taken and James S. Carr’s signature forged, and the certificate pledged for money advanced by plaintiff, would present such a case as ■ would make it proper to submit to a jury the question of fact as to whether or not defendant’s negligence was the proximate cause of plaintiff’s loss.
    We take it that upon the presentation of such a case it would be tbe duty of the court to say, that even assuming negligence on the part of defendant in dealing with the certificate, the proximate cause of the loss was the failure of plaintiff to verify the signatures to the paper, — a duty which rested on it.
    All the cases show that it is only when a party holds a certificate to which is attached the genuine signatures of the parties who must sign to make it good, that the question arises as to whether or not the company is liable to him because of negligence, when the certificate is in fact false by reason of having been unproperly or fraudulently issued.
    The doctrine is stated thus in Allen v. South Boston Ry. Co., 150 Mass. 200 (22 N. E. Repr. 917), viz.:
    “ The ground upon which a corporation is held liable to a bona fide purchaser for value of false certificate of its stock issued under its seal signed by the proper officers and apparently genuine, is that the certificates are statements by the corporation of facts which it is its duty to know, and which cannot well be known to the purchasers.”
    So in Railway Co. v. Citizens’ National Bank, 56 Ohio, 351 (47 N. E. Repr. 249); and R. R. Co. v. Schuyler, 34 N. Y. 30, the obligation of the purchaser to make inquiry as to the genuineness of the signatures is recognized and it is only when the signatures are found to be genuine that the duty of the company to stand by its representations comes into play, or that its duty to the purchaser to take care as to the issue of the certificate arises.
    These three cases are cited and relied upon by plaintiff :
    Even the cases of strictly negotiable instruments, whore such changes are made in the instrument as to amount to the crime of forgery, and the maker is held liable because he signed negotiable paper in such form as to readily admit of fraudulent alteration, all assume the genuineness of the signature and do not even suggest that any business man owes to another the duty of seeing that a third party does not forge his signature to an instrument of writing. See Zimmerman v. Rote, 75 Pa. 188; Garrard v. Haddan, 67 Pa. 82; McSparran v. Neeley, 91 Pa. 17.
    The case of Robb v. Penna. Co., 186 Pa. 456, does not aid plaintiff, because in that case no one even suggests liability on the part of the ostensible drawer of the check save upon the assumption that the rubber stamp signature was his genuine signature.
    Until the plaintiff shows a certificate, to which are attached' the genuine signatures of all the parties whose signatures are necessary to its validity, he is not even entitled to enter the lists where the contest as to the negligence of the company is to be fought out.
    When he has such signatures, he may well say that it is the company’s business, not his, to know whether or not its officers used the money received for the stock honestly or dishonestly, — or whether or not there was an overissue, or whether the issue of this certificate was in fact without authority, or whether it was by negligence put into circulation unintentionally.
    In the present case,, if the certificate had been signed by the president and secretary and sealed and left with Carr and he had signed it without authority and issued it fraudulently, the company would doubtless be bound to recognize its validity, or'if Alward had obtained Carr’s genuine signature the result would be the same. But the duty to ascertain the genuineness of the signatures, or the risk of acting without inquiry as to this, rests upon the purchaser, and when he neglects this duty or assumes this risk he has no standing to show negligent conduct on the part of defendant, or any conduct not amounting to an adoption of the forged signature as his own.
    Possibly if this certificate purporting to have Carr’s signature attached had been put upon the market by an officer of defendant company, such as the president and secretary, who, in dealing with the issue of stock, must be regarded as the company, it would be estopped, but we do not have such a case.
    That “ where one of two innocent persons must suffer from the fault of a third, the loss must be borne by the one whose negligence enabled the third person to commit the fraud ” is a generalization sanctioned by use for considerably more than a century, but, like many another excellent rule, its application calls for discretion and discrimination, and when plaintiff fails in a duty of care which be owes to himself, fully, as imperative as any owed to him by defendant, and thus, and thus alone, bring himself within the scope of the effects of defendant’s negligence, lie cannot be beard to say that defendant’s negligence and not his own, was the proximate cause of his loss.
    " Nor can it with any propriety be said that one who simply leaves a paper where his employee may complete it by forging a signature, is estopped to deny the genuineness of the signature as against one whose duty it was to satisfy himself as to such signature.
    We cannot see that defendant is estopped by failure to give notice of the fact that a certificate not fully executed had disappeared.
    Plaintiff is again met by its own failure to take care on its own behalf. Failure to give notice could not make good a certificate void for want of a necessary signature.
    The authorities cited by plaintiff are simply to the effect, that when a negotiable instrument is in the hands of some unknown person who cannot recover it, the proper course for the maker to pursue is to attempt to give such notice that it cannot come into the hands of a purchaser without notice, and thus prevent him from setting up his defense.
    This is only incidental advice, as so commonsense a proceeding does not need the sanction of a court’s judgment.
    The conclusions arrived at by us are sustained by many cases, amongst them the following viz.: Penna. Co. for Ins. on Lives, etc., v. Franklin Fire Ins. Co., 181 Pa. 40; Hill v. Jewett Publishing Co., 154 Mass. 172 (28 N. E. Repr. 142) ; Knox v. Eden Musee Co., 148 N. Y. 441 (42 N. E. Repr. 988) ; Mass et al. v. M., K. & T. Ry. Co., 83 N. Y. 223.
    We are of opinion that the demurrer to the statement of plaintiff should be sustained.

      Error assigned was the judgment of the court.
    D. T. Watson, with him James W. Collins and John M. Freeman, for appellant.
    The plaintiff was not guilty of contributory negligence in not verifying the signature to the stock certificate before accepting it as collateral for the loan: Shattuck v. Cement Co., 205 Pa. 197; Kisterbock’s App., 127 Pa. 601; Ry. Co. v. Citizens’ Nat. Bank, 56 Ohio, 351 (47 N. E. Repr. 249); Real Estate Trust Co. v. Bird, 90 Md. 229 (44 Atl. Repr. 1048); Knox v. Eden Musee Co., 74 Hun, 483 (26 N. Y. Supp. 482) ; Willis v. Phila. & Darby R. R. Co., 13 Phila. 33; Robb v. Penna Co., 186 Pa. 456; Wood’s Appeal, 92 Pa. 379.; Brown v. Reed, 2 W. N. C. 230; Zimmerman v. Rote, 75 Pa. 188 ; Garrard v. Haddan, 67 Pa. 82; McSparran v. Neeley, 91 Pa. 17; Fifth Ave. Bank v. R. R. Co., 137 N. Y. 231 (33 N. E. Repr. 378); Allen v. So. Boston Railway Co., 150 Mass. 200 (22 N. E. Repr. 917); Isham v. Post, 141 N. Y. 100 (35 N. E. Repr. 1084) ; Western Maryland R. R. Co. v. Bank, 60 Md. 36; Salisbury Mills v. Townsend, 109 Mass. 115; Tome v. R. R. Co., 39 Md. 36.
    The defendant company was clearly negligent in signing the certificate and attaching the corporate seal thereto, and thereafter failing to safeguard it: Allen v. Ry. Co., 150 Mass. 200 ; Ry. Co. v. Bank, 56 Ohio, 351; Havens v. Tarboro Bank, 132 N. C. 214 (43 S. E. Repr. 639) ; Brown v. Reed, 2 W. N. C. 230; Garrard v. Haddan, 67 Pa. 82; McSparran v. Neeley, 91 Pa. 17.
    The duty to protect the public requires the use of due diligence to provide against forgeries : Tome v. R. R. Co., 39 Md. 36.
    The defendant- company was clearly guilty of negligence in not advertising' the loss of this certificate after it discovered that the same was missing from its stock book. This was clearly a duty which it owed to the public, and had it performed this duty, in all probability the plaintiff company would not have sustained any loss.
    The certificate of stock, as signed and sealed by the company, was complete. The negligence of the company consisted in intrusting or giving its employees access, not to an incomplete certificate, but to a complete one.

      William Scott, of Dalzell, Scott Gordon, with him JR. IT. Hawkins, for appellee.
    Defendant’s acts were not the proximate cause of plaintiff’s loss: Young v. Grote, 4 Bing. 253; Bank of Ireland v. Evans’s Charities, 5 H. L. C. 389 ; Hill v. Jewett Pub. Co., 154 Mass. 172 (28 N. E. Repr. 142) ; Knox v. Eden Musee Co., 148 N. Y. 441 (42 N. E. Repr. 988) ; Ry. Co. v. Bank, 56 Ohio, 351; Farmers’ Bank v. Safe & Lock Co., 66 Ohio, 367 (64 N. E. Repr. 518).

      The conduct of the defendant did not constitute negligence: Hill v. Jewett Pub. Co., 154 Mass. 172; Manhattan Life Ins. Co. v. Ry. Co., 139 N. Y. 146 (34 N. E. Repr. 776); Maas v. Ry. Co., 83 N. Y. 223.
    The duty incumbent upon the plaintiff was to ascertain whether or not the signatures were genuine.
    January 2, 1906 :
   Pee Cueiam,

Judgment affirmed on the opinion of the court below.


author: Mr. Justice Elkin,

text:
    Dilworth v. Nicola, Appellant.

      Equity — Conveyance—Assignment—Sale.
    Where a person purchases a share of a one-half interest in the profits of a real estate transaction, and receives as his only evidence of interest therein a receipt for the money, he may compel the vendor by a bill in equity to execute a formal assignment of the share, and it is no answer to such a bill that there could be no severance of interests until the transaction was closed at the end of twenty-five years thereafter.
    Argued Oct. 23, 1905.
    Appeal, No. 4, Oct. T., 1905, by defendant, from decree of C. P. No. 3, Allegheny Co., Feb. T., 1904, No. 115, on bill in equity in case of H. P. Dilworth v. Frank F. Nicola.
    Before Mitchell, C. J., Fell, Beown, Mesteezat, Pottee, Elkin and Stewaet, JJ.
    Affirmed.
    Bill in equity to compel the assignment of an interest in a real estate transaction. Before McClung, J.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned was the decree of the court.

      William Scott, of Dalzell, Scott Gordon, with him Wm. M. Hall, for appellant.
    In cases of a joint purchase where each purchaser is to have an interest in the purchase in proportion to his advances, parol evidence is admissible to establish the trust as well as- to rebut, control or vary it: Jenkins v. Eldredge, 3 Story, 181.

      An interest in contingent profits arising from a sale of real estate to be made thereafter, does not amount to an interest in the land itself, within the meaning of the statute of frauds : Benjamin v. Zell, 100 Pa. 33 ; Howell v. Kelly, 149 Pa. 473.

      A. M. Imbrie, with him J. S. and E. G. Ferguson, for appellee.
    An equitable assignment is an agreement in the nature of a declaration of trust which a chancellor, though deaf to the prayer of a volunteer, never hesitates to execute when it has been made on a valuable or even good consideration : Nesmith v. Drum, 8 W. & S. 9; Moeser v. Schneider, 158 Pa. 412.
    The form of assignment is immaterial, so that there be a clearly expressed intention of an immediate transfer of a right to the assignee: Ruple v. Bindley, 91 Pa. 296; Guthrie & Byles’s App., 92 Pa. 269.
    Equity will support assignment of contingent interests and expectancies, that is, things which have no present actual existence, but rest in mere possibilities, provided the agreements are fairly entered into and it would not be against public policy to uphold them: Day & Sharpe’s Assigned Estate, 21 Pa. Superior Ct. 118, (122).
    A court in equity enforces assignments on the ground that the assignee is entitled to have immediate specific performance of the contract to assign, as soon as the property comes into existence in the hands of the assignor: Bispham’s Equity, sec. 162 et seq.; Philadelphia, etc., R. R. Co. v. Woelpper, 64 Pa. 366.
    January 2, 1906 :
   Opinion by

Mr. Justice Elkin,

On August 2, 1901, the appellant entered into an agreement with Mary E. Schenley for the purchase of certain property located in the city of Pittsburg, for the sum of $2,000,000, payable $100,000 in cash on signing the agreement and the balance on April 1, 1902. The appellee paid one-tenth of the hand money and took from appellant a receipt in the following language :

“ Received of H. P. Dilworth $10,000 being the tenth of hand money stipulated in agreement with Mary E. Schenley dated August 2, 1901 and being in payment of one tenth interest in said agreement.”

On August 17, following, the appellant sold and afterwards transferred the ■Schenley agreement to H. C. Frick, who agreed to perform the covenants thereof, take title to the property, refund all moneys expended by the appellant, including the $100,000 advanced, and, upon the final sale of the property, whatever money Frick had advanced to be repaid together with interest thereon, and the balance was to be equally divided between the two parties. Frick subsequently entered into an agreement with the Pennsylvania Railroad Company to sell and convey said property for the sum of $2,850,000, to be paid on or before July 1, 1927, prior to which date the railroad company agreed to pay an annual rental of $99,750. At the time the agreement between Nicola and Frick was made, the interest of Dilworth in the transaction was not disclosed. It is, however, not denied that he is entitled to a one-tenth interest of Nicola in said transaction. The only evidence he has of his interest therein is the receipt above mentioned. This bill was filed in the court below asking for a decree requiring the defendant to execute and deliver to plaintiff a formal assignment of a tenth of his interest in the Frick agreement.

Upon a hearing of the case, the court below held that he was entitled to the relief prayed for, and entered a decree requiring the assignment to be made. If it is the subject-matter of equitable jurisdiction, and of this there seems to be no doubt, the decree was properly entered. The appellant admits that the appellee is entitled to a one-tenth interest in the agreement, but contends that he cannot have it severed and set apart until the transaction is finally closed in 1927. We do not agree with this contention. If Dilworth has a tenth interest in the agreement he is entitled to have some evidence of that interest at the present time. It would be inequitable and unjust that he should be compelled to wait until the final payments are made, twenty-five years in the future, before he has anything but the receipt to show his interest therein.

It is argued that the provisions of the agreement with Frick are such as to make it impossible that there should be a severance of interests. This contention is without merit. The interest of Mr. Frick in the agreement is not affected by the rights and liabilities of the parties to this suit. Under the agreement, Mr. Frick is authorized to collect the annual rentais from the Pennsylvania Railroad Company and apply them to the interest and advances made by him until July 1, 1927, at which time he is to collect the purchase money and after reimbursing himself for his expenditures and advances, he is to divide the remainder thereof between himself and Nicola. Dilworth'assented to and is bound by that agreement, and is only entitled to receive a tenth of the profits which accrue to Nicola under the terms thereof. ■ How, then, can Frick ‘ be injured by the interest that Dilworth has in the transaction ? At all events, Frick is entitled to one-half, Nicola to nine-twentieths, and Dilworth to one-twentieth, of the profits. Then again, the agreement provides that it is to be considered as if made between thé parties, their heirs, executors, administrators and assigns. It thus appears in the express language of the agreement itself that it is to apply to the assigns thereof.

How, then, can Nicola be heard to say that Dilworth is nob entitled to have a decree by a court of equity directing an assignment to be made of the interest which it is admitted he has in the transaction ?

Decree affirmed at the cost of the appellant.


text:
    'Wright, Appellant, v. Monongahela Street Railway Company.

      Negligence — Streets railways — Fright of horse — Evidence—Nonsuit.
    In an action against a street railway company to recover damages for personal injuries, it appeared from the testimony for the plaintiff that while the car of the defendant company was approaching the vehicle in which the plaintiff was riding, and while it was yet several hundred feet away, the horse drawing the vehicle was observed to rear once, and then proceed on its way without further rearing or plunging until it reached the car, and that it then jumped immediately in front of the car, of against it, and the plaintiff was thrown from the vehicle and injured. There was nothing in the proof which indicated that the driver of the vehicle had lost control of the horse. Held,, that a nonsuit was properly entered.
    Argued Oct. 24, 1905.
    Appeal, No. 15, Oct. T., 1905, by plaintiff, from order of C. P. No. 3, Allegheny Co., Feb. T., 1902, No. 594, refusing to take off nonsuit in case of Mary G. Wright v. Monongahela Street Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, J J.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Kennedy, P. J., filed the following opinion:
    This is an action of trespass for the recovery of damages for injuries resulting to the plaintiff, as claimed by her through the negligence of the defendant company. The accident occurred on September 24, 1901, on Forbes street, in the city of Pittsburg, and she claims that the accident, and the resulting injury to herself, was caused by the negligence of the defendant company in the management of its car by the motorman. It appears from the testimony that while the car of the defendant company was approaching the vehicle in which the plaintiff was riding, and while it was yet several hundred feet away, the horse drawing the vehicle was observed to rear once and then proceed on its way without further rearing or plunging until it reached the car of the defendant company, and that then it jumped immediately in front of, or against it, and the plaintiff was thrown from the vehicle and injured. There is nothing in the testimony which indicated that the driver of the vehicle had lost control of the horse. It is true that one of the witnesses, a boy of fourteen years, testified that the horse was jumping, but there is nothing to show that he made more than one plunge before reaching the car, and that while it was a long way distant. The testimony seems to be plain that after this first and only plunge the horse proceeded on its way under control of the driver until it reached the car, and jumped immediately in front of or against it. We do not think that the motorman could be held guilty of negligence, unless the horse was acting in such a way as to indicate to him, the motorman, that the driver had lost control of him, or was likely to do so, and that at a sufficient distance to make it possible for the motorman to avoid the accident. The one plunge, or rearing of the horse, at the great distance from the car, was not sufficient to indicate to the motorman that the driver had lost control of it; to so indicate, the demonstration must be continued as he approached the car. A number of witnesses, called on behalf of the plaintiff, saw the accident, and if more than one plunge or demonstration had been made by the horse, indicating a want of control by the driver, it would certainly have been seen and testified to by some of the witnesses. While the boy stated that the horse did some more jumping, there was nothing in his testimony that would indicate that the driver lost control of him, and all the other witnesses state that the horse proceeded up the street, approaching the car in the usual way, and at a moderate rate of speed.
    The rule to show cause why the judgment of nonsuit should not be taken off must be discharged. It is so ordered.

      Error assigned was order refusing to take off nonsuit.

      Ralph P. Tannehill, with him Thos. M. and Rody P. Marshall,, for appellant.

      Samuel MoOldy, of Reed, Smith, Shaw Beal, for appellee.
    January 2,1906:
   Pee Cueiam,

Judgment affirmed on the opinion of the court below.


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

      Negligence — Railroads—Master and servant — Fellow servant.

    In an action against a railroad company to recover damages for the death of plaintiff’s husband, an employee of the company, a nonsuit is properly entered, where it appears that the decedent was killed in a collision while riding on an engine of the company, and that the accident was caused by the negligence of fellow servants in violating the rules and schedules of the company.
    Argued Oct. 24, 1905.
    Appeal, No. 29, Oct. T., 1905, by plaintiff, from order of C. P. No. 1, Allegheny Co., Sept. T., 1902, No. 88, refusing to take off nonsuit in case of M. E. Spangler v. The Baltimore & Ohio Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Brown, J., filed the following opinion:
    This matter arises upon a motion to take off a compulsory nonsuit in an action by Mary E. Spangler against the 'Baltimore & Ohio Railroad Company, to recover damages resulting from the death of her husband, caused by a head-on collision between an east-bound freight engine and a west-bound passenger train. Mr. Spangler was upon the east-bound freight engine operated by the freight crew proceeding to the scene of a wreck upon the Wheeling branch of said company.
    The undisputed evidence shows :
    1. That the telegraphic message (under which the freight engine was proceeding) was subject (a) to the rule and railway schedule of the company giving priority of right of way to passenger trains; and (6) to the rule requiring a flagman approximately a mile ahead of the freight engine to protect its crew against passenger trains.
    2. That in violation of these rules and schedules well known to the employees of the railroad company (of whom Mr. Spangler was one), the freight engine, without any flagman ahead, proceeded easterly several miles to the point of its collision with the west-bound passenger train.
    The violation of these rules by fellow servants being the proximate cause of the collisions bars a recovery. The case is ruled by Kennelty v. Baltimore & Ohio Railroad Company, 166 Pa. 60, in which it is said by Mr. Justice Fell, delivering the opinion:
    “ It was clearly shown by the testimony produced by the plaintiff that the collision was caused not by an unsafe schedule or defective rules, but that it was due to the reckless disregard of clearly defined and well understood duties by those in charge of the train. As they were coemployees of the plaintiff’s husband there was nothing to leave to the jury, and the nonsuit was properly entered.”
    Motion overruled.

      Errar assigned was refusal to take off nonsuit.

      Joseph Rowley, with him W. A. Hudson, for appellant.

      John S. Wendt, with him Johns Me Cleave, for appellee.
    January 2, 1906:
   Per Curiam,

Judgment affirmed on the opinion of the court below.


author: Mr. Justice Potter,

text:
    Park Steel Company v. Allegheny Yalley Railway Company, Appellant.

      Railroads — Crossing—Streets—Tramway of steel company — License— Equity — Act of June 19, 1871, P. L. 1361.
    A-railroad company will be enjoined from interfering with or removing a tramway constructed by a steel company across its tracks for the'purpose of hauling materials to and from different parts of the steel company’s plant, where it appears that the tramway in question was constructed on a public street which the steel company had the right to make use of as part of the public, and while not required so to do had received permission from the railroad company to cross the tracks, which license had become irrevocable by the expenditure of money, and that the railroad company had refused to permit the steel company to put in a modern frog construction which would have obviated the delays complained of by the railroad company.
    The Act of June 19, 1871, P. L. 1361, relating to railroad crossings does not apply where the parties have established a crossing and are using it; nor does it extend to the regulation of grade crossings of railroads over ordinary streets and highways.
    Argued Oct. 24, 1905.
    Appeal, No. 31, Oct. T., 1905, by defendant, from decree of C. P. No. 2, Allegheny Co., July T., 1900, No. 137, on bill in equity in case of The Park Steel Company v. The Allegheny Yalley Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Rodgers, J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a decree in accordance with the prayers of the bill.

      Error assigned among others was the decree of the court.

      Thomas Patterson, of Patterson, Sterrett Aeheson, for appellant,
    cited on the question of license: R. R. & Coal Co. v. Norton, 24 Pa. 465; Branson v. Philadelphia, 47 Pa. 329; Heyl v. R. R. Co., 51 Pa. 469 ; Cauley v. Ry. Co., 95 Pa. 398; Traction Co. v. Canal Co., 180 Pa. 636 ; Pitts. & L. E. R. R. Co. v. Lawrence County, 198 Pa. 1.

      John S. Wendt, with him Johns Me Cleave, for appellee.
    The right of the railroad company to passage along Railroad street, and especially across Thirty-first street, is qualified and subject to the restriction that the traffic passing along Thirty-first street shall not be interfered with, and the defendant company is so bound to construct and operate its railroad as to afford the public a reasonable right of passage along Thirty-first street: Com. v. R. R. Co., 27 Pa. 339; Elliott on Railroads, sec. 1093 ; Warner v. Ry. Co., 141 Pa. 615 ; Rascher v. Ry. Co., 90 Mich. 413 (51 N. W. Repr. 463); Ill. Cent. R. R. Co. v. Chicago, 141 Ill. 586 (30 N. E. Repr. 1044).
    Under the surrounding circumstances, the carriage by plaintiff of its products along Thirty-first street and over defendant’s railroad by the tramway in question here is not an unreasonable exercise of its right of passage over and across defendant’s railroad : Jones v. R. R. Co., 151 Pa. 30; Allegheny v. Zimmerman, 95 Pa. 287; Vallo v. U. S. Express Co., 147 Pa. 404; Smith v. Simmons, 103 Pa. 32; Redman v. Boulevard Co., 189 Pa. 437.
    The Act of June 19, 1871, P. L. 1361, relating to railroad crossings does not apply to this case because the crossing has been long established and used. It only applies to crossings about to be established adversely by railroads over other railroads or street railways. Besides, it does not apply to grade crossings of public roads and railroads.
    Under the facts found by the court, it is clear that the license to cross the railroad by this tramway is irrevocable: Rerich v. Kern, 14 S. & R. 267; Kay v. Penna. R. R. Co., 65 Pa. 269; Thompson v. McElarney, 82 Pa. 174; McKellip v. McIlhenny, 4 Watts, 317; Big Mountain Imp. Co’s. App., 54 Pa. 361; Dyer v. Cornell, 4 Pa. 359; Pierce v. Cleland, 133 Pa. 189; Baldwin v. Taylor, 166 Pa. 507; Willis v. Ry. Co., 188 Pa. 56; Southwestern R. R. Co. v. Mitchell, 69 Pa. 114.

      January 2, 1906:
   Opinion by

Mr. Justice Potter,

In this action, the Park Steel Company filed a bill in equity against the Allegheny Valley Railway Company, praying for an injunction to restrain the defendant company, its agents and employees, from interfering with or removing a tramway constructed and operated by the plaintiff along Thirty-first street in the city of Pittsburg, across the tracks of defendant’s railroad. The court below, after hearing, granted the injunction prayed for, and further enjoined defendant from unreasonably obstructing or interfering with the operation of the tramway in the hauling of materials to and from different parts of the plaintiff’s manufacturing plant. From this decree defendant has appealed.

The tramway is stated by the trial judge in his findings of fact to be a narrow gauge track, thirty-two inches in width, extending from the interior of plaintiff’s furna.ce buildings, on the southerly side of Railroad street through said buildings to Thirty-first street, and thence along and close to plaintiff’s buildings across the railroad tracks; then along and into the finishing mills lying between Railroad street and the Allegheny river. The car used is a small flange-wheeled iron truck, about eighteen inches wide and forty-two inches long. The materials hauled are ingots and billets weighing from 1,000 to 7,500 pounds. The average load is about four and one-half tons. The car is loaded by cranes and is usually hauled by mules, although sometimes pushed by men, to its destination. In its passage over the tracks of defendant each car is in charge of experienced men. Plaintiff has a watchman stationed at the railroad crossing. Its rules to regulate the use of the crossing are most stringent. The total average crossing of the railroad tracks, both loaded and unloaded, is'about 100 times per diem. It also appeared by the testimony that the rails of the railroad company are not cut and there are no crossing frogs, it being what is termed a “jump crossing.” The rails of the tramway are a little higher than the rails of the track and there is a space left for the flange and tread of the wheels of the railroad cars.

The court below found as facts, that public travel is not obstructed by this tramway; that its rules for the regulation of the crossing are all that could reasonably be required of plaintiff ; that the use of horses and wagons for this transportation is impracticable and would be an equal damage to tbe railroad; that from the operation of the tramway no serious accident resulting in either loss of life or personal injury has occurred; that on a few occasions defendant suffered a trifling property loss to its rolling stock by striking derailed trams or their loads; that occasionally, but not frequently, loaded trams are derailed upon defendant’s tracks; that defendant’s serious complaint is that its trains are delayed by these derailments, which are caused by reason of the construction of the crossing, it being a “ jolt ” crossing; that a modern frog construction of the crossing would greatly lessen the number of derailments as well as reduce the time consumed in crossing; but the defendant has refused to allow plaintiff to construct such a crossing; that the construction of a tunnel under the railroad tracks would be difficult, if not impossible, and very expensive ; and that an overhead system of conveyance had been tried and proved unsatisfactory and unsuccessful.

The first assignment of error is to the decree of the court below. The second, third and fourth assignments are to findings of fact. It is sufficient to say with regard to these findings, that there is ample evidence to support all of them, and they will not be disturbed. It is very evident that what the defendant company is really complaining of, is not the tramway or its rails, for these do not in any way interfere with or injure the defendant’s tracks or property, or delay its trains. It was the manner and extent of the use of the grade crossing over its tracks by the plaintiff, which the defendant company thought was objectionable, and with which it sought to interfere. Much of the argument for appellant goes upon the theory that the right to cross the tracks at the point in question is based upon a license, or permission, extended by the railway company; and it is contended that the permission given by its president could not ripen into a grant and become an indefeasible right but is necessarily revocable whenever the railroad company reaches the conclusion that it is inconsistent with the proper management of the railroad and the protection of its trains and passengers.

But this line of reasoning is not relevant to the issue now under consideration, because of the fact that the plaintiff is making use of a public street. Tbe crossing in question is that of a public highway, and the plaintiff has the right to make use of it, as part of the public, and is under no necessity to ask for permission, or seek license to do so, from the defendant company. Whatever inconvenience the railway company may be under from the crossing of its tracks at grade by a public highway it is bound to submit to, or else take the proper means to abolish a grade crossing. Furthermore, in this particular instance, it appears from the act of incorporation, that it is the duty of the railway company to avoid obstructing or impeding the free use and passage of any public roads which it may intersect; and that the duty of constructing causeways over the public roads, in order to enable all persons and vehicles to pass over the railroad with safety and convenience, is placed directly upon the railroad company.

If, however, the question of license were important in this case, we should feel obliged to hold that under the facts the plaintiff company has obtained from the defendant an express license which has become irrevocable. One of our latest cases upon this subject is Harris v. Brown, 202 Pa. 16, where our Brother Mestkezat says (p. 22) : “ It is undoubtedly true that a mere license without consideration is determinable at the pleasure of the licensor. But that is not the rule in this state where the enjoyment of the license must necessarily be, and is, preceded by the expenditure of money. In such cases the license becomes an agreement on a valuable consideration and is irrevocable.” Citing Rerick v. Kern, 14 S. & R. 267, and other cases. And as far back as 1868 in Cumberland Valley R. R. Co. v. McLanahan, 59 Pa. 23, Justice Sharswood held, that a license to a railroad company to cross private lands, upon the faith of which valuable improvements had been made by the company, was not within the statute of frauds and was irrevocable, and that such license might be given or ratified by parol.

It appears in the testimony in this case, and is found as a fact by the- trial judge, and is admitted in the argument for appellant, that the appellee and its predecessors have made valuable improvements to their property in connection with, and in reliance upon, the agreement for this crossing.

The argument that the use of the crossing by the plaintiff company interferes with the discharge by the railroad company of its primary duty to the public, is negatived by the finding of fact by the court below, that the obvious remedy is to permit the plaintiff to put in a modern frog construction, and that having refused to accept a modern up to date crossing, when proffered by the plaintiff, the responsibility for any resulting inconvenience or delay, caused by the use of the antiquated construction, must be borne by the defendant company.

It is also contended that the authorities under the Act of June 19, 1871, P. L. 1361, should be applied to this case. But even if the act could be extended to such a case as this, it has been expressly held in W. N. Y. & P. Ry. Co. v. Ry. Co., 193 Pa. 127, that it does not apply where the parties have established a crossing and are using it.

In Railroad Company v. Upper Darby Twp., 202 Pa. 429, it was pointed out, that under this act of 1871, the authority of the courts does not extend to the regulation of grade crossings of railroads over ordinary streets and highways.

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