text:
    Copelin, Appellant, v. Board of School Directors of the City of Harrisburg.

      School law — Collector of school taxes — Cities of the third class — City treasurer ■ — Taxation—Public officers.

    A city treasurer of a city of the third class is not the collector of school taxes under the provisions of the Act of June 20, 1901, section 8, P. L. ,578, where it appears that the school board has accepted only the 42d and 43d sections of the Act of May 23, 1874, P. L. 230, and has not accepted the 41st section of the same act.
    Argued April 26, 1906.
    Appeal, No. 5, May T., 1906, by plaintiff, from judgment of C. P. Dauphin Go., Jan. T., 1906, No. 301, on demurrer to return to writ of mandamus in case of Owen M. Copelin v. Board of School Directors of the City of Harrisburg.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Demurrer to return to alternative mandamus.
    Kttnkel, P. J., filed the following opinion :
    This is a proceeding by mandamus to compel the board of school directors of the city of Harrisburg to deliver to the plaintiff, who claims to be the collector of school taxes for the school district of that city, its warrant for the collection of the school taxes for the years 1905, 1906, and to fix the amount of his bond as collector of such taxes. The question upon which the controversy turns is raised by a demurrer to the return which has been filed to the alternative writ of mandamus and involves the construction of the Act of assembly of June 20, 1901, P. L. 578. That act provides as follows:
    “ Section 1. That the several city treasurers, hereafter elected in cities of the third class of this commonwealth, by virtue of their office shall be the collectors of all the city, school and poor taxes, assessed or levied in their respective cities, and shall perform the duties and be subject to the hereinafter provisions of this act.
    “Section 2. At the same time the city treasurer entersupón his duties, he shall take and subscribe his oath of office as collector of city, school and poor taxes, which oath shall be filed with the city clerk of the proper city.
    “Section 3. The several city, school and poor authorities, now empowered, or which may be hereafter empowered to levy taxes upon persons and property within the said -cities of the third class, shall, on the last day of June in each year, make out and deliver their respective duplicates of taxes assessed to the said city treasurer, as the collector of the said several taxes, which taxes shall be collected by the said city treasurer, by virtue of his office, as herein provided. . . .
    “ Section 4. The said several duplicates shall be accompanied with the warrants of the proper authorities, directing and authorizing the said city treasurer, as the collector of taxes, to collect the same. The warrant for the collection of any school tax shall be executed by the president of the board of school controllers, attested by the secretary thereof. . . .
    “ Section 6. The said treasurer, as collector of taxes, before entering upon his duties, shall give bond in the usual form to the respective authority levying the tax, in an amount to be by them severally fixed, with corporate or at least two sufficient sureties to be by them approved, conditioned that the said treasurer, as collector of taxes, shall well and truly collect and pay over or account for, according to law, the whole amount of the taxes charged and assessed in the duplicates which shall be delivered to him during his term of office. . . .”
    The plaintiff is the city treasurer of the city of Harrisburg, which is a city of the third class, constituting the school district of that city, having entered upon the discharge of the duties of that office on the first Monday of April, 1905, and has taken and subscribed his oath of office as collector of school taxes, as required by the act of assembly of 1901. If there was nothing more, therefore, in that act than the sections above quoted, the right of the plaintiff to exercise the office of collector of the school taxes assessed or levied in the district and the duty of the defendant to fix the amount of his bond as such collector and to deliver the warrant to him to collect the school taxes would be clear. But the 8th section of the act provides: “The school taxes which shall be collected under the provisions of this act are the school taxes only which are levied by the boards of school controllers, organized and acting under and in pursuance of the act of assembly entitled ‘ An act dividing the cities of this state into three classes, regulating the passage of ordinances, providing for contracts for supplies and work in said cities, authorizing the increase of indebtedness and the creation of a sinking fund to redeem the same, defining and punishing certain offenses in all of said cities, and providing for the incorporation and government of cities of the third class,’ approved the twenty-third day of May, Anno Domini one thousand eight hundred and seventy-four, and the supplement to said act, approved the sixteenth day of June, Anno Domini one thousand eight hundred and ninety-one, and are payable to said city treasurer as ex officio school treasurer under existing laws.” By this section there is a manifest limitation upon the first section of the act, which provides, as we have seen, that ‘ the several city treasurers shall be the collectors of all the school taxes assessed or levied in their respective cities.” The duty of the defendant to fix the amount of the plaintiff’s bond as collector of the school taxes of the district and to deliver to him its warrant for the collection of the same must necessarily depend upon the question whether the taxes for the collection of which the warrant is demanded, and for which the plaintiff is required to give bond, fall within the language of the eighth section: “ The school taxes which shall be collected under this act are the school taxes only which are levied by the boards of school controllers, organized and acting under and in pursuance of the act of assembly .... approved the twenty-third day of May, Anno Domini one thousand eight hundred and seventy-four, and the supplement to said act, approved the sixteenth day of June, Anno Domini one thousand eight hundred and ninety-one, and are payable to said city treasurer as ex officio school treasurer under existing laws; ” and the solution of this question depends, so far as this controversy is concerned, on the further question whether the defendant is a board of school controllers falling within the description or designation contained in section 8.

      From the return to the alternative writ of mandamus it appears that the city of Harrisburg, on August —, 1874, accepted the provisions of the act of May 23, 1874, and that the acceptance was accompanied by a certificate from the school district of that city, signed by the proper officers thereof, expressing its desire to retain the laws governing it independent of that act, as provided in section 41 of the act. The laws thus retained and by which the district has since been governed are the act 'of May 8, 1854, commonly known as the general school law; the Act of April 22, 1868, P. L. 1136, a supplement to the act .of March 19, 1860, incorporating the city of Harrisburg, which, inter alia, reads as follows : “ That the southward school district and the northward school district shall hereafter be consolidated and constitute the common school district of the city of Harrisburg: that at the same time and place of holding the election of city officers, the voters of the first, third, fourth, fifth, sixth, seventh, and ninth wards, shall elect three qualified citizens for school directors, one to serve for one year, one for two years, and one for three years; that the voters of the second and eighth wards shall elect two qualified citizens for school directors, one to serve for two years, and one for three years, and that annually thereafter such election of school directors shall be had as may be required to fill any vacancy occasioned by death, resignation, or expiration of the term of any school director. The term of office of the aforesaid school directors shall commence on the first Monday of June following their election, at which time they shall organize the board of school directors of the city of Harrisburg and proceed as now provided by law ; that all the property, both real, personal, and 'mixed, now owned and possessed by the aforesaid southward school district and northward school district, shall be transferred and vested in the board of school directors of the city of Harrisburg, and they shall possess all the powers and privileges heretofore exercised by the board of school directors of the southward school district, the board of school directors of the northward school district, and the board of control of public schools of the city of Harrisburg.” Subsequently, on May 27, 1884, the defendant accepted the provisions contained in sections 42 and 43 of the act of May 23, 1874. It thus appears that at the present time the defendant is subject to the act of May 8, 1854, the act of April 22, 1868, and of sections 42 and 43 of the Act of May 23, 1874, P. L. 230.
    It is not disputed that the taxes of which the plaintiff claims to be the collector fall within the designation of section 8 of the act of 1901, “ payable to the city treasurer as ex officio school treasurer,” because, as we have seen, section 42 of the act of 1874, which provides that the city treasurer shall be ex officio school treasurer, and section 43 of that act, which provides for the assessment, levy and collection of the school taxes, have been accepted by the defendant and are, therefore, the law of the school district of the city of Harrisburg. But are the taxes those which are levied by a board of school controllers, organized and acting under and in pursuance of the Act of May 23, 1874, P. L. 230, and its supplement of June 16,1891, P. L. 306?
    It is suggested that the defendant is not a board of school controllers, and for this reason the act of 1901 does not apply to it. We attach but little weight to this suggestion, because, although there was a distinction between a board of school controllers and a board of school directors prior to the act of 1874, we think that that distinction was abolished by that act, for in it we find the terms “ controllers ” and “ directors ” are used interchangeably. In the second proviso to section 41 of the act it is said, “ None of the provisions of the act shall be applicable to the election of directors or controllers.” This is significant in view of the fact that the act does not provide for the election of directors as distinguished formerly from controllers in cities of the third class constituting one school district. And in the 42d section of the act, in providing for the bond to be given by the treasurer, it is said: “ The city treasurer as ex officio school treasurer .... shall give bond to the school directors.”
    It is also suggested the term “ acting under and in pursuance of the act of 1874” means not acting generally under and in pursuance of that act, but acting under and in pursuance of the act with respect to the subject of school taxes, and that if this meaning is given the phrase the defendant would fall within this designation, bécause it acts under and in pursuance of section 43 of the act of 1874, which provides for the assessment, levy and collection of school taxes. Even if we should adopt this view, the question would still remain: Is the defendant within the further designation of a board “ organized under and in pursuance of the act of 1874 and its supplement of 1891? ”
    We are thus brought to the interpretation of the word “organized ” as used in section 8. Is it to be interpreted in its limited sense and be held to mean merely the election of officers for the board ? If it is, the requirement that the board shall be organized under and in pursuance of the acts of 1874 and 1891 is purposeless, unless these acts give some special direction in regard to the election of officers. But that is not the case, except as to the time when the election shall be held. Yet in this particular, the only one which gives the phrase “ under and in pursuance of the act of 1874 ” any significance, the defendant is not organized in the limited sense of the word under and in pursuance of that act, because it elected its officers, as has always theretofore been done, on the first Monday in June, following the election of school directors, as directed by-the act of April 22, 1868, while tbe act of 1874, in its 41st section, directs that “ the said board of controllers shall annually, on the Tuesday succeeding the municipal election, meet and organize by electing a president and secretary.”
    Nor is the defendant organized under and in pursuance of the acts of 1874 and 1891, if we interpret the word organized in a broader sense and to mean erected, established, constituted, composed, and formed as to its constituent parts, because it is composed, formed and constituted in conformity to the directions of the act of April 22, 1868, with respect to the number of directors which shall represent the several wards in the board, the duration of their term of office, their qualifications, and the time when the directors shall meet together and out of its constituent parts form a board and elect officers therefor, while in all these particulars the provisions of the acts of 1874 and 1891 widely differ from the provisions of the act of 1868, by which the defendant has always been governed. None of the provisions of the act of 1874, which relate to the constituent parts of the board, or its constitution or formation, all of which are contained in section 41 of the act, has been accepted by the defendant, but, on the contrary, they have been declined, the district having exercised the choice given by the act itself to retain the old laws which governed it.

      It may be further observed that it is only under this latter interpretation of the word that any meaning attaches to the requirement that the board shall be organized under and in pursuance of the act of 1891, the supplement to the act of 1874. The act of 1891, although called a supplement, is substantially an amendment to the act of 1874, and amends it in section 41, changing the representation in the wards of cities of twelve, thirteen and fourteen wards from one to two controllers. Thus there is a direct reference made to the number of members of the board, and that act is not operative in the school district of Harrisburg.
    From the comprehensive character of the designatory phrase we have been considering, we think it quite evident that the legislature by the 8th section of the act of 1901 intended to limit its operation to those school districts which had accepted, or should accept, all the provisions of the act of 1874, and thus come completely under the system provided for their government by that act. It, therefore, provided not only that the district should have for its treasurer the city treasurer, to whom its taxes were payable, for this would have embraced districts which had accepted only some of the provisions of the act of 1874. It not only provided that the board of school controllers should act under and in pursuance of the act, for that might have also embraced districts that had only accepted part of the act, nor did it only provide that the board should be organized or constituted conformably to the provisions of the act, for that, too, would have only embraced school districts which had accepted but parts of the act. But it required that the board of school districts to which it should apply should come within all these designations. The defendant does not come -within this threefold designation.
    Under this view of section 8, school districts which are acting like that of the city of Harrisburg as to the assessment, levy and collection of school taxes, under and in pursuance of the act of 1874, are excluded from the provisions of the act of 1901. And so are all other districts which have accepted only some of the provisions of the act of 1874. However this may be, we can only say that thus is the statute written, and that the exclusion arises out of the plain intention evinced in the 8th section of the act itself to limit and restrict its operation to certain designated school districts, for without that section its language is general, but with it the general language is restricted to taxes levied by particular school boards. It is not to be overlooked, however, that the excluded districts have it within their power to bring themselves under the provisions of the act of 1901, if they so choose, by exercising the right of accepting the provisions of the act of 1874, which is granted them by the third proviso of that act, and thus to come under the system of government provided by these acts.
    May 14, 1906:
    We are of the opinion that the taxes for the collection of which the plaintiff seeks to compel the defendant to deliver to him its warrant and as the collector of which to fix the amount of his bond are not the school taxes which have been levied by a board of school controllers, organized and acting under and in pursuance of the act of May 23, 1874, and its supplement of June 16, 1891, and that the provisions of the act of June 20, 1901, relating to the collection of school taxes and constituting the city treasurers of cities of the third class collectors of school taxes assessed or levied in said cities, does not apply to the school district of the city of Harrisburg.
    Judgment is directed to be entered on the demurrer in favor of the defendant.

      Brror assigned was the judgment of the court.

      C. H. Bergner,. with him W. K. Meyers and I). S. Seitz, for appellant.

      M. W. Jacobs, for’ appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the learned judge of the common pleas.


source: Caselaw Access Project

author: Mr. Justice Mestbezat,

license: Public Domain

text:
    Dalrymple’s Estate.

      Domicile — Evidence—Change of domicile — Intention—Collateral tax.

    Where a person died in a town where he had lived, had owned real and personal property, had voted, and had paid a personal tax, ho will be deemed to have been domiciled in such town at the time of his death, although he had been frequently away from it, owned property in other states, and had declared that he expected to make his home in a city in another state.
    The orphans’ court has jurisdiction to determine the domicile of a testator although a probate court in another state had admitted his will to probate and granted letters testatmentary thereon.

      Collateral tax — Appraiser—Appointment of appraiser — Act of May 6, 1887, P. L. 79.

    Under the Act of May 6, 1887, P. L. 79, the appraiser who is authorized to “fix the valuation of estates” subject to collateral inheritance tax, must be appointed by the register of wills of the county in which the decedent had his residence at the time of his death, or of the county in which is the principal part of his estate.

      Collateral tax — Real estate in another state — Conversion—Will.
    An express direction in a will to sell real estate in another state works a clear and immediate conversion into personalty, and makes the property subject to the payment of a collateral inheritance tax in this state.

      Collateral inheritance tax — Legacies—Postponement of payment — Devise.
    Where the time of the payment of legacies only is postponed, and the legatees are to receive not only the principal of the legacy, but also the interest or income accruing thereon, the payment of the collateral inheritance tax is not postponed.
    Where the testator directs his executors to give to a nephew the use of a farm for ten years, and at the expiration of ten years to convey the same to him in fee simple, the collateral tax is not postponed.

      Collateral tax — Conversion—Discretionary power of sale.

    Where a testator gives to his executors a merely discretionary power to sell real estate situated in another state, there is no conversion until an actual sale, and until such sale is made the land is not subject to collateral tax.
    Argued April 30, 1906.
    Appeals, Nos. 223 and 329, Jan. T., 1905, by Oliver Dalrymple et al., and by the Commonwealth of Pennsylvania, from decree of O. C. Warren Co., Dee. T., 1904, No. 27, on appeal from collaterial tax in Estate of W. F. Dalrymple.
    Before Brown, Mestrezat, Potter, Erkin and Stewart, JJ.
    Affirmed.

      Appeal from appraisement for collateral tax.
    The court in a very lengthy opinion by Lindsey, P. J., found that the testator was domiciled at Pittsfield at the time of his decease, citing: Jacobs on Domicil, 120; Carey’s Appeal, 75 Pa. 201; Price v. Price, 156 Pa. 617; Kellogg v. City of Oshkosh, 14 Wisconsin, 678; Com. v. Emerson, 1 Pearson, 204; Hans v. State of Louisiana, 24 Fed Repr. 55; Frick’s App., 114 Pa. 29.
    The court also found that there was a conversion as to the land in North Dakota, citing: Drayton’s App., 61 Pa. 172; Miller v. Com., Ill Pa. 821; Williamson’s Estate, 153 Pa. 508, and Handley’s Estate, 181 Pa. 339.
    The court also further found as follows:
    In paragraph six of the second section the testator directs his executors and trustees to give to Frank Dalrymple,' his nephew, the use of the home farm on which he now resides, in Sugar Grove, Warren County, Pa., consisting of about seventy-five acres, for ten years, and at the expiration of ten years, to convey the same to him in fee simple. This title unquestionably passes to Frank Dalrymple as real estate and is not subject to any life estate or estate for years, and therefore does not come within the provisions of the third section of the act of 1887. The tax is presently payable on this legacj1’ by Frank Dalrymple, the legatee.
    In paragraph seven, the testator directs his executors and trustees to hold, manage, operate, develop, improve, etc., all the balance of his estate for a term of ten years and for such longer time as they may deem necessary, not exceeding twenty years. And in paragraph eight he makes the following direction : “ At the expiration of ten (10) years- after my decease, or at such other time or times after said ten (10) years but prior to the expiration of twenty (20) years from my decease as my said executors and trustees or their successors in the trust shall deem expedient or advisable, and for the best interests of my estate, I direct that all the said balance of my estate, together with all proceeds of the sale thereof and all interest, income and accumulations thereof then remaining in their hands, except the above mentioned specific devises and bequests, be by them paid over, delivered and distributed as follows, to-wit, in equal shares to the then living children or lineal descendants by right of representation of my six brothers, to-wit, David Dalrymple, Mark Dalrymple, Reuben Dalrymple, Clark Dalrymple, Oliver Dalrymple and Sheldon N. Dalrymple.”
    We do not think this paragraph falls under the third section of the act of 1887. There is no life estate created, or such estate for years as is contemplated by this section of the act. Therefore Coxe’s Estate relied on by appellants does not apply to this case, either as reported in 181 Pa. 369, or in 193 Pa. 100.
    The court entered the following decree :
    And now, June 12, 1905, it is ordered, adjudged and decreed that the executors and trustees of the estate of W. F. Dalrymple, deceased, George H. Noyes, H. C. Hale and Jay M. Smith, pay to the register of wills of Warren county, Pennsylvania, within thirty days from this date, the collateral inheritance tax at the rate of $5.00 on every $100 on each of the specific bequests named in paragraphs three, four and five of section 2 of the testator’s will, amounting in the aggregate to $3,900. And it is further ordered, adjudged and decreed that the said trustees pay to the said register of wills the collateral inheritance tax on the balance of said estate passing to the legatees at the rate of $5.00 upon every $100, as provided in paragraph eight of said will, amounting in the aggregate to $2,872.67, within thirty days from this date. And it is further ordered, adjudged and decreed that Frank Dalrymple pay to said register of wills, $5.00 for every $100 on the appraised value o£ the farm devised to him, amounting to $60.00 within thirty days from this date ; and it is ordered, adjudged and decreed that the said executors and trustees pay the costs of these proceedings within thirty days from this date.

      Error assigned amongst others was the decree of the court.

      W. E. Rice, with him W. D. Hinckley, J. H. Alexander and George H. Noyes, for Oliver Dalrymple et al, appellants.
    The register of wills had no jurisdiction to appoint an appraiser: Harrigan v. Gilchrist, 121 Wis. 127 (99 N. W. Repr. 909).
    The domicile of William F. Dalrymple, deceased, was establisted by tbe adjudication of tbe county court of Milwaukee county, Wisconsin, in probate, and such adjudication is binding upon all parties and cannot be collaterally attacked: Slinger’s Will, 72 Wis. 22 (37 N. W. Repr. 236) ; Security Trust Co. v. Black River Natl. Bank, 187 U. S. 211 (23 Sup. Ct. Repr. 52) ; Byers v. McAuley, 149 U. S. 608 (13 Sup. Ct. Repr. 906); Corrigan v. Jones, 14 Colo. 311 (23 Pac. Repr. 913) ; Record v. Howard, 58 Me. 225 ; McPherson v. Cunliff, 11 S. & R. 422; Shoenberger’s Estate, 139 Pa. 132.
    May 14, 1906 :
    The legal domicile of William F. Dalrymple at the time of his death was not in Pennsylvania, and the learned court below, from the evidence adduced before it, should, as a question of fact, have so found: Carey’s App., 75 Pa. 201.
    No part of the estate, personal or real, actually and permanently located and found outside of the state of Pennsylvania, is subject to appraisement for the assessment of collateral inheritance tax thereon: Bittinger’s Est., 129 Pa. 338 ; Miller v. Com., 111 Pa. 321; Finnen’s Est., 196 Pa. 72; Union Refrigerator Transit Co. v. Kentucky, 36 Sup. Ct. Repr. 36 ; Orcutt’s App., 97 Pa. 179 ; Drayton’s App., 61 Pa. 172.
    The tax is not presently payable in any event: (a) because the residuary estate is involved in a trust which is to be administered for not less than ten and not exceeding twenty years before the period of distribution; and (&) the residuary legatees cannot be ascertained until the period of distribution arrives: Orcutt’s App., 97 Pa. 179 ; Lines’s Est., 155 Pa. 378; Coxe’s Est., 193 Pa. 100 ; Cooper’s Est., 127 Pa. 435 ; Belcher’s Est., 211 Pa. 615 ; Lick’s Est., 12 Pa. Dist. Rep. 573; People v. McCormick, 208 Ill. 437 (70 N. E. Repr. 350) ; Hoffman’s Est., 143 N. Y. 327 (38 N. E. Repr. 311).

      Edward Lindsey, with him TV. W. Wilbur and Earle MacDonald, for the Commonwealth of Pennsylvania.
   Opinion by

Mr. Justice Mestbezat,

In his able and exhaustive opinion, the learned judge of the orphans’ court has considered every question raised on these appeals and has so clearly vindicated his conclusions of fact and law that nothing additional is required to support the decree. The questions raised in the court below in this adjudication were determined in one opinion, and these two appeals, being from the same decree, may be considered together.

The court was clearly right in holding that Pittsfield, Warren county, was the domicile of William P. Dalrymple at the time of his decease. He began business in that county and was the owner of both real and personal property there at the time of his death. It is the only place, so far as the evidence discloses, in which he ever voted or paid a personal tax. As said by the learned judge: “ It is shown that he continued to pay a personal tax in Pittsfield, that he continued to vote at Pittsfield, until within a few years of his death, and that he continued to return there to his home at Judge Acocks’ till the very time of his death, and died there.” He declared that to be his home and that he made it a point to return there and vote at presidential elections when his business interests would permit. As against this we have the fact that he owned property in other states and his declarations that he expected to make his home in Milwaukee and Bayfield, Wisconsin. But these declarations are inconsistent with his acts in continuing to vote in Warren county, this state, and in continuing regularly to return and spend part of his time there until he died in 1901. His intention as disclosed by these declarations, not being carried into effect by an actual change of habitation, there was no change of domicile: Carey’s Appeal, 75 Pa. 201. Nor are the recitals in his will and some of his deeds sufficient to fix his domicile. They are not controlling when contradicted by other facts and circumstances : Jacobs on Domicile, 568.

The authority of the orphans’ court to determine the domicile of the testator, notwithstanding the action of the probate court of Milwaukee county, Wisconsin, in admitting his will to probate and granting letters testamentary, is clearly sustained by the numerous authorities cited in the opinion of the court below.

The first section of the Act of May 6, 1887, P. L. 79, provides that all estates, real, personal or mixed, passing to any persons, natural or artificial, other than those named in the section, shall be subject to a collateral inheritance tax. This section imposes a tax absolutely upon all such estates. Subsequent sections of the act provide the manner in which the tax shall be assessed and the amount of the tax ascertained. The twelfth section makes it “ the duty of the Register of Wills of the county in which letters testamentary or of administration are granted to appoint an appraiser, as often as and whenever occasion may require, to fix the valuation of estates which are or shall be subject to collateral inheritance tax.” It was not the purpose of this section of the act to determine what estates should be subject to the tax nor to declare that appraisers should not be appointed unless letters had previously been granted by the register of wills. The first section, as we have seen, imposes the tax, and it is not conditional on the prior granting of letters testamentary or of administration on the decedent’s estate. All estates of the character designated in the first section are subject to the tax. Hence the manifest purpose of the twelfth section was to designate the officer who should appoint the appraisers and the county in which the appointment should be made. The section imposes the duty of appointing the appraisers upon the register of wills, and designates the county in which the law requires letters on the decedent’s estate to be granted, as the county in which the appraisers must be appointed. The sixth section of the Act of March 15, 1832, P. L. 135, 1 Purd. 574, declares that letters “ shall be grantable only by the register of the county within which was the family or principal residence of the decedent, at the time of his decease, and if the decedent had no such residence in the Commonwealth, then by the register of the county where the principal part of the goods and estate of such decedent shall be.” Hence the appraiser who is authorized “ to fix the valuation of estates ” subject to collateral inheritance tax must be appointed by the register of the county in which the decedent had his residence at the time of his death, or of the county in which is the principal part of his estate.

There is no merit in the contention that the will did not work a conversion of the testator’s real estate in Pennsylvania and North Dakota. The third paragraph of the will provides “Inasmuch as I have certain real and persoual property belonging to me situated and being in the states of Pennsylvania and North Dakota, I do hereby expressly direct my said executors and trustees or their successors in the trust to sell the same, éxeept the home farm hereinbefore devised to Frank H. Dalrymple, at such prices and upon such terms as they may deem best, and to keep, hold, invest, use and apply the money or other proceeds from the sale of the same for the uses and purposes mentioned therein.” This, it will be observed, is an express direction to sell the real estate in Pennsylvania and North Dakota and works a clear and immediate conversion into personalty. It is therefore subject to the payment of a collateral inheritance tax : Handley’s Estate, 181 Pa. 339.

Neither the devise of the farm to Frank Dalrymple nor the bequests to the lineal descendants of testator’s brothers are within section three of the act of 1887, so as to postpone the payment of the collateral inheritance tax. The title to the farm vested in Frank Dalrymple and no estate for life or years intervened so as to subject it to the operation of section three of the act. Nor were the descendants of testator’s brothers to come into possession of their legacies after the expiration of a life estate or of a period of years. The time of the payment of the legacies only was postponed, and the legatees will receive not only the principal of the legacies but also the interest or income accruing thereon. No other person, under the provisions of the will, can receive any part of the principal or income of the sums bequeathed. Hence no estate for life or years in these legacies intervened between the death of the testator and the time at which they are required to be paid by the trustees.

The Wisconsin real estate was not subject to the payment of a collateral inheritance tax. Real estate situated without the commonwealth is not, as such, subject to collateral inheritance tax under our act of 1887 : Bittinger’s Estate, 129 Pa. 338 ; but the proceeds of such real estate become liable for the tax when there is a conversion of the land by a positive direction in the will that it shall be sold : Miller v. Commonwealth, 111 Pa. 321; Williamson’s Estate, 153 Pa. 508. The status of the property at the instant of the death of the testator determines its liability for the tax, and where the conversion is not imperative, but only permissive and rests in the discretion of the executor or others, it does not become operative until the exercise of the discretion, and in the meantime the land retains its normal character: Handley’s Estate, 181 Pa. 339. The Wisconsin lands, like all the other property of the testator, were placed in the hands of his executors and trustees for the purposes named in the will. As we have seen, the real estate in Pennsylvania and. North Dakota was, by the express terms of the will, to be sold, and hence there was an immediate conversion at the testator’s death. But as to the Wisconsin lands, there was no positive direction to sell which would work an immediate conversion. The executors and trustees were to hold, manage, improve, invest and reinvest the residue of the testator’s estate, which included the Wisconsin real estate, for ten years and for such longer time as they might deem necessary, not exceeding twenty years. By a subsequent paragraph of the will, the testator directs that, at the discretion of his executors and trustees and within twenty years, “ all the said balance of my estate, together with all proceeds of the sale thereof and all interest, income and accumulations thereof then remaining in their hands, except the above mentioned specific devises and bequests, be by them paid over, delivered and distributed as follows, to wit: in equal shares to the then living children or lineal descendants by right of representation of my six brothers.” By this clause of the will, the executors and trustees were required to pay over, deliver and distribute to the beneficiaries the residue of the estate, but they were not required to sell the Wisconsin real estate and pay over the proceeds. The testator’s scheme of distributing his estate did not necessarily require a sale of his Wisconsin lands. The trustees can convey those lands to the beneficiaries and this will meet the requirements of the will. The argument that it was necessary to sell the Wisconsin lands to pay debts is not convincing. It does not appear that, at the date of the will, the testator conceived such necessity to exist, and hence that it was his intention, which is controlling, that his lands in that state should be sold. In fact, the contrary inference is to be drawn, that the debts which were not satisfied out of the personal estate were to be paid out of the proceeds of the sale of the Pennsylvania and North Dakota real estate, which the testator gave express directions to his executors and trustees to sell. That the real estate in these two states is not now of sufficient value to pay his debts is by no means conclusive that he- did not regard it as sufficient for that purpose when he executed his will, and that, therefore, he intended that his Wisconsin lands should not be “ delivered ” to the beneficiaries as real estate. Besides, he owned several mining locations in Canada which he, like most men who invest in such property, may have regarded as of great value and as sufficiently productive to meet all his obligations. The intention of the testator, therefore, that his executors should sell his Wisconsin real estate cannot be regarded as having been made to appear because of the present indebtedness of his estate. It is apparent, we think, that the will did not work an immediate conversion of the Wisconsin real estate so as to subject it to the payment of a collateral inheritance tax in this state.

Both appeals from the decree of the orphans’ court are dismissed, and the decree is affirmed.


author: Mr. Justice Stewabt,

text:
    Robinson, Appellant, v. Norwood Borough.

      Boroughs — Opening streets — Damages—Remedy—Viewers—Action of trespass.

    Where a borough opens and grades a street, and there is no negligence in the actual performance of the work, the damages, if any, resulting to private property must be ascertained not in an action of trespass, but in the statutory proceedings before viewers. The mere fact that the borough deviated from a previously adopted plan and scheme of grading, as a result of which an increased amount of water was precipitated upon private property, is not such negligence as to make an action of trespass the proper remedy, instead of the statutory proceeding before viewers.
    Argued Feb. 5, 1906.
    Reargued May 2, 1906.
    Appeal, No. 166, Jan. T., 1905, by plaintiff, from judgment of Superior Court Oct. T., 1904, No. 131, reversing judgment of C. P. Delaware Co., Dec. T., 1903, No. 223, on verdict for plaintiff, in case of Joseph Robinson v. Borough of Norwood.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ., on reargument.
    Affirmed.
    Appeal from Superior Court. See 27 Pa. Superior Ct. 481.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was the judgment of the Superior Court.

      William I Schaffer, with him William Gorman, for appellant.
    Trespass was the appropriate remedy: Stork v. Phila., 195 Pa. 101; Elliott v. Oil City, 129 Pa. 570 ; Torrey v. Scranton, 133 Pa. 173 ; Weir v. Plymouth Borough, 148 Pa. 566 ; Bohan v. Avoca Borough, 154 Pa. 404; Frederick v. Lansdale Borough, 156 Pa. 613; Borough of West Bellevue v. Huddleston, 23 W. N. C. 240; Carpenter v. Lancaster, 212 Pa. 581.
    May 14, 1906 :

      Edward P. Bliss, for appellee.
    The plaintiff was not entitled to recover in trespass: White v. Borough of McKeesport, 101 Pa. 394; Beltzhoover Borough v. Gollings, 101 Pa. 293; Power v. Ridgway Borough, 149 Pa. 317; Cooper v. Scranton, 21 Pa. Superior Ct. 17; Hoster v. Phila., 12 Pa. Superior Ct. 224; Chatham Street, 16 Pa. Superior Ct. 103 ; Curran v. East Pittsburg Borough, 20 Pa. Superior Ct. 590.
   Opinion by

Mr. Justice Stewabt,

The only question in this case is one of remedy. Admitting plaintiff’s right of redress, how was it to be obtained ?; by an action in trespass, the remedy he adopted, or by the statutory proceeding for the assessment of damages resulting from the borough’s improvement? The injury complained of in the plaintiff’s statement was, that in consequence of the borough’s wrongfully, carelessly, and negligently constructing and opening certain streets and avenues, and altering, changing and otherwise interfering with the grade of the land and direction of the water courses contiguous and adjacent to plaintiff’s premises, large quantities of surface water were made to run and flow from the lands and said avenues above, about or lateral to the premises of the plaintiff down to, upon, over and through plaintiff’s property, which before the constructing and opening of said avenues, and the altering and changing the natural grade of the land and direction of the water courses had flowed away from the plaintiff’s premises.

It is to be observed that the only injury alleged is the increase in the discharge of water upon plaintiff’s premises; the manner and method of its discharge are not complained of. If there were nothing in the case but the mere fact that there was an increased discharge of water upon plaintiff’s property resulting from the opening, grading and construction of the streets, the only remedy available to the plaintiff would be by statutory proceeding. The averment that the work in connection with the opening and construction of the streets was done negligently, and that the negligence of the borough and its employees in this regard was the cause of the increased flow, would make an action of trespass the proper remedy, provided the facts sustained the averment. No matter how strongly negligence be averred, if the facts proved warrant no such inference, of course trespass could not be maintained. The plaintiff’s evidence failed to show that the flow of water upon his premises was from any larger surface area than was contemplated by the borough authorities, in connection with the improvements they were making; or that any increased flow resulted from failure to observe the original plans for their improvement, unless such result followed a change of plan at the crossing of Sylvan and Ridley avenues. Plaintiff’s property fronts on Ridley avenue. Sylvan crosses Ridley at right angles about 300 feet to the north. According to the natural lay of the ground at the intersection of the two avenues, the water flowing down Ridley avenue, before reaching plaintiff’s property, if not artificially obstructed — except such portion as would find its way to the west along Sylvan avenue — would flow down Ridley avenue to the plaintiff’s premises on the opposite side of the street, just where it now flows. There was some evidence to show, and indeed it may be conceded as a fact in the case, that according to the original plan of improvement, it was designed to arrest the flow of water down Ridley avenue and along the west side, at the crossing of Sylvan avenue, and conduct it eastward along Sylvan avenue. Had such plan been observed, plaintiff’s property would then have received only the water that gathered below Sylvan avenue and such as came from above on the west side of Ridley, if any. This scheme was not observed in the final grading, and Sylvan avenue was so graded that the water coming from Ridley avenue north of Sylvan on the east side of the avenue, and that gathering on east Sylvan, flowed down Ridley and was discharged on the premises of the plaintiff. As the case is presented here, this is the only material fact in all the evidence to be considered. Whatever other increase of flow upon plaintiff’s premises there may be, clearly results from the general plan of grades adopted by the borough; and for any damage that plaintiff may have sustained in consequence, his remedy would be under the statutory proceeding. His contention is that the divergence from the original plan at the crossing of Sylvan and Ridley avenues, was negligence ; and this states the only question in the case. It is quite evident that the case on its appeal is made to turn on something that was not reckoned of much moment on the trial. The effort there was to show disturbance of natural channels and increased area of drainage to the injury of the plaintiff, through artificial causes, without suggestion of negligence, except as it might be sought to derive such inference from the borough’s adoption and execution of an imperfect and defective system of grading. Here the argument is that a portion of this increased flow results from a negligent disregard by the borough’s employees of the adopted scheme for grading, at the intersection of the two avenues, Ridley and Sylvan. The evidence in regard to the situation at this particular point is very meager, and most of it is to be found on defendant’s side of the case. It is not complained that the actual work was done negligently; in other words, that because of defective materials or insufficient drains or culverts, the flow of the water had been directed in a way not intended. It is admitted that if the design was to carry the water from East Sylvan avenue down Ridley, the work has been carefully and adequately accomplished. The only negligence charged is deviation from the original plan. The plaintiff rested his case with showing the deviation. With the burden upon him to prove negligence, certainly something more than this was required. It was not for the jury to infer from the single fact that there was want of correspondence at this point between the paper and the actual grade, that the variation resulted from negligence. We must assume, for nothing is here asserted to the contrary, that the borough entered upon these improvements with due observance of all legal requirements, and that what it did in this connection it had a right to do. The power that determined the grades in the first instance had the right to alter and amend the plans whenever necessary to meet conditions that had not been considered ; and for all that appears in the plaintiff’s case the change made at this particular point may have been determined upon by the borough authorities with the same deliberation and formality as was observed in the adopting of the original plan. The only explanation of the change is to be found in the testimony of the horough engineer, a witness called by defendant. It is this witness’s testimony that is relied on to show negligence. A brief reference to it will show a contrary effect. On Sylvan avenue, some 200 yards east of the point of intersection with Ridley, there is a summit, and a considerable cut at that point would have been required in order to conduct the water to the east as originally contemplated. When asked why the present grade was adopted, bringing the water to Ridley, the witness’s reply was : “ For the simple purpose that the property owners objected to the deep cut. We had a plan with two grades, one with a summit, and one with the street grade; the summit was adopted first, and afterward the street grade was adopted.” Instead of supporting the claim of negligence, this evidence negatives it in a very direct way. It shows that the work was directed to the very end in view, and so far as appears it was in the exercise of a rightful authority.

For whatever injury the plaintiff has sustained by reason of the facts complained of, he can have proper redress by the statutory proceeding, and it is his exclusive remedy.

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


author: Mr. Justice Potter,

text:
    Wagoner v. Philadelphia, Appellant.

      Municipalities- — Contract of employment — Wages—Estoppel.
    An ordinance of a city providing for the employment of workmen at per diem wages will not prevent the city, or any of its departments from discontinuing the payment of a full day’s wages for a half day’s work.
    Where a city has discontinued the practice of paying workmen a full day’s wages for Saturday half holidays, as provided by an ordinance, the workmen are estopped from complaining of such reduction where it appears that they accepted payment of the reduced rate of wages every two weeks for more than two years, signed the pay roll in receipt of these wages, without protest at the time, and without objection made to the department by which they were employed.
    Argued Jan. 17, 1906.
    Appeal, No. 200, Jan. T., 1906, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1905, No. 877, on verdict for plaintiff in case of Charles S. Wagoner, Assignee of Wilmer W. Slack et ah, v. City of Philadelphia.
    May 24, 1906:
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit for wages. Before Davis, J.
    The facts are stated in the opinion of the Supreme Court.
    The court refused binding' instructions for defendant.
    Verdict and judgment for plaintiff for $3,112.39. Defendant ■ appealed.

      Error assigned was in refusing binding instructions for defendant.

      Robert Brannan, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellant.
    An ordinance granting per diem employees of a city a half holiday with a provision for a full day’s pay is not in the nature of a contract between the city and such employees : Com. v. Bacon, 6 Serg. & Rawle, 320; Barker v. Pittsburg, 4 Pa. 49; McCormick v. Fayette County, 150 Pa. 190.
    Plaintiff’s assignors are estopped from claiming back wages by their own action in receiving their pay regularly and signing the pay roll for a period of more than two years without protest or demand for the wages they now claim to be due: Love v. Mayor, etc., of Jersey City, 40 N. J. L. 456 ; Stagg v. Ins. Co., 77 U. S. 589.

      Ernest L. Tustin, with him Charles 8. Wesley, for appellee.
   Opinion by

Mr. Justice Potter,

The plaintiff in this case holds by assignment the claims of certain bricklayers, who were employed on a per diem basis by the Bureau of Water, Department of Public Works of the city of Philadelphia. By virtue of an ordinance of the city dated June 29, 1894, these bricklayers, in common with other employees of the city, were granted a half holiday on Saturdays, without any deduction being made therefor from the full day’s pay. After January 1, 1903, the department in which they were employed continued to allow the bricklayers the half holiday on Saturdays, but discontinued the practice of paying them for the time during which they were not at work. The reason for the action of the department in this respect, seems to be found in the appropriation ordinance for 1903 and 1904, which provided that the union rate of wages should be paid to bricklayers. This was somewhat in excess of the prior rate of wages. The present action is brought to recover the amount which, it is claimed, should have been paid to the bricklayers for the time included in the Saturday half holidays from January 1, 1903, to the date of the commencement of the suit. It appears from the evidence, that the bricklayers accepted the union rate of wages for a period of more than two years, and that during this time were paid regularly every two weeks, and signed the pay roll in receipt of these wages, without protest at the time, and without objection made to the department by which they were employed. The trial judge seems to have regarded the ordinance of 1894 as a contract obligation upon the part of the city to pay the per diem employees for the time included in the half holidays. With this view we do not agree. We cannot regard an ordinance fixing salaries as being in the nature of a contract between the employees and the city. These bricklayers cannot be regarded as public officers. They are nothing more than workers engaged from day to day, and their employment might of course have been terminated at any time. Rut even if it had been permanent, or if they could have been classed as public officers, the ordinance providing for their compensation would not partake of the nature of a contract. It was so ruled by this court in Com. v. Bacon, 6 S. & R. 322. It was there said, “ Services rendered by public officers do not in this particular partake of the nature of contracts, nor have they the remotest affinity thereto. As to stipulated allowance, the allowance whether annual, per diem, or particular fees for particular services, depends on the will of the law makers; and this whether it be the legislature of the state, or a municipal body empowered to make laws for the government of a corporation. This has been the universal construction.” The same principle has been recognized and followed in Barker v. Pittsburg, 4 Pa. 49, and in McCormick v. Fayette County, 150 Pa. 190. There was therefore no contractual relation between the city and these per diem employees which would prevent the city, or any of its departments, from discontinuing the payment of a full day’s wages for a half day’s work.

Counsel for appellee evidently regards the ordinance of 1894 as binding upon the director of the department, and as compulsory upon him to allow a full day’s pay for half a day’s work. The measure was undoubtedly intended for the guidance of the directors of the departments, and for any disregard of its provisions they might be called to account by the proper authority; but the effect of the passage of the ordinance was certainly not ■ to vest in the employees, any contract rights as to the rates of compensation for their labor. The allowance was made to the bricklayers for the Saturday half holidays, until the change in the rate of wages was made, under the appropriation ordinance of 1903, and thereafter the union rate of wages was paid, and the allowance for an extra half day’s pay on Saturdays was stopped. It may well be, that the director was correct in his construction of the later ordinance as showing an intention to discontinue the former allowance for the Saturday holiday. But at any rate the men accepted the situation, in so far at least that no protest was made to the director of the department by whom they were employed.

The trial judge submitted to the determination of the jury the question of whether or not the fact that these employees did thus accept without objection their pay every two weeks in accordance with the schedule prepared by the paymaster, constituted a waiver on their part of any claim against the city for more pay. In this submission we think he erred. It would be most unreasonable to permit an employee to receive his pay without objection or dissent, from time to time at a fixed rate, for a considerable period, and thereafter present a claim for additional compensation. If the amount received was not satisfactory the employees should have quit work, or raised an objection then and there; so that the department would have been put upon notice, and would have exercised its option of meeting the demand, or finding someone else to do the work for the rate of pay deemed sufficient. We can only look upon the continuance in employment, as an expression of satisfaction by the workmen with the amount of the compensation; and the receipt of payments every two weeks throughout the whole period, is to be deemed an estoppel against the assertion of any claim for additional compensation at this time. Under the circumstances, continuance in the employment of the department from day to day can only be regarded as acquiescence in the rate of wages fixed by the department. The fact that this was the union rate of wages shows that it was at least equivalent to the prevailing market rate at the time.

The first assignment of error is sustained, and the judgment is reversed.


text:
    Zerbey, Appellant, v. Allan.

      Equity — Equity practice — Opinion—Findings of fact and law — Equity Rule 62.
    Where an opinion in an equity case is arranged in a clear and orderly way, and the facts and law are considered separately, the decree based upon the opinion will not be reversed because the findings of fact and law are not set forth in separate and numbered paragraphs as provided by Equity Rule 62.

      Equity — Equity practice — Review.
    The appellate court will not reverse a final decree in equity because the court did not sit in bano to pass upon the exceptions, where on the face of the decree it appears to have been made “By the Court” and not by an individual judge.

      Easement — Merger—Extinguishment of easement.

    Where there is a union of an absolute title to and possession of the dominant and servient estates in the same person, it operates to extinguish the easement on the servient estate absolutely and forever, for the reason no man can have an easement in his own land.

      Deed — Description—Courses and distance.

    Where land is sold according to a plan of lots, and a deed for one of the lots shows that a course was evidently omitted, the missing course may be shown from the description in the deed for the adjoining lot.

      Easement — Right of way — Express grant — Permissive use.

    An express grant of the use of a stable yard for access to the rear of adjoining premises is a privilege personal to the owner of such premises, and does not enure to the benefit of adjoining owners.
    Where a user is with the knowledge and acquiescence of the owner of the land traversed, and is under his leave, favor and permission, and at his will, no title by prescription can arise.

      Argued Feb. 12, 1906.
    Appeal, No. 221, Jan. T., 1905, by plaintiff, from decree of C. P. Schuylkill Co., Nov. T., 1904, No. 5, dismissing bill in equity in case of J. H. Zerbey v. William L. Allan, Clyde G. Allan and Louisa M. Allan.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The facts are stated in the opinion of the Supreme Court.

      jError assigned among others was in dismissing the bill.

      Samuel K. Kaercher, with him Daniel W. Kaercher, for appellant.
    The opinion violated Rule No. 62 : Schmidt v. Baizley, 184 Pa. 527 ; Gaynor v. Quinn, 212 Pa. 362; Jones v. Weir, 213 Pa. 135.
    The decree was only heard by one judge: Myers v. Consumers’ Coal Co., 212 Pa. 193.
    If the dominant and servient tenements become vested in the same owner, by the common law, the easement is extinguished by unity of title; by the civil, the servitude is lost by confusion; but it is but the name that is gone, the right remains under a higher title.
    Upon a subsequent severance of the estate, by alienation of a part the alienee becomes entitled to all continuous and apparent easements, which have been used by the owner during the unity of the estate, and which are necessary for the enjoyment of the several parts : Kieffer v. Imhoff, 26 Pa. 438.
    The easement being both apparent and continuous was not extinguished by merger, in consequence of the unity of possession in the two joint owners who had purchased subject to it and had maintained its use ; it could not therefore be closed without the consent of all the owners of lots bounding on it: Ferguson’s App., 117 Pa. 426; Hall v. McCaughey, 51 Pa. 43; Lindeman v. Lindsey, 69 Pa. 93; McKee v. Perchment, 69 Pa. 342; Horn v. Miller, 136 Pa. 640; Gardner v. Weaver, 11 W. N. C. 544; Seibert v. Levan, 8 Pa. 383; Watson v. Bioren, 1 S. & R. 227; Wissler v. Hershey, 23 Pa. 333 ; Plitt v. Cox, 43 Pa. 486.

      R. A. Koch, for appellees.

      May 24, 1906:
   Opinion by

Mr. Justice Potter,

This is an appeal from a decree dismissing a bill in equity filed for the purpose of enjoining defendants from excavating and building upon an alleged right of way in the rear of plaintiff’s premises.

Plaintiff aud defendants are the owners of adjoining properties situate on the south side of Mahantongo street in the borough of Pottsville. Defendants’ property, on which a hotel building is erected, is on the southwest corner of Mahantongo and Center streets, extending westwardly along the former street ninety-nine feet nine inches to the line of plaintiff’s propertj1-, which extends thirty feet seven inches further westward. On the east side of plaintiff’s lot is a covered alleyway eleven feet seven inches wide and forty feet in depth. Defendants have the right to use this alleyway in common with the owners and tenants of other portions of the property in the same square formerly owned by Samuel Sillyman. Plaintiff’s lot is forty feet in depth and is built up to the rear line adjoining other ground of defendants. This ground has long been used as part of a hotel yard and for a stable shed, but defendants are now preparing to erect upon it an addition to their hotel and have begun excavating for that purpose. Plaintiff alleges that he has a right of way over eleven feet seven inches of ground immediately adjoining his present building to the south, and also to a way over a piece of ground of the same width and length adjoining the southern end of the alley leading from Mahantongo street.

As it appears from the testimony that plaintiff has no entrance to liis building from the rear, and makes no use of. the alleged right of way, the purpose of this bill is manifestly to prevent the obstruction of his windows by the wall of defendants’ new building. In the bill as filed by plaintiff he based his claim upon an alleged continuous and adverse user for thirty years and upward, but that claim was abandoned, both in the court below, and upon the argument in this court, and the case for the plaintiff is rested entirely upon the covenants contained in the record evidence.

The first assignment of error suggests that the trial judge did not follow Equity Rule 62. It is true that he did not state the findings of fact and law, in separate and numbered paragraphs, as is the usual and better practice. But the opinion is arranged in a clear and orderly way, and the facts and law are considered separately. The findings of the court can be readily ascertained, and each request for findings was answered fully and directly.

The second assignment complains that the court did not sit in banc, to pass upon the exceptions. But on the face of the final decree, it appears to have been made “ By the Court ” and not by an individual judge. The only inference that we can draw from the record is, that the conclusion reached was that of the court, and not merely the judgment of an individual member thereof.

But turning to the merits of the question raised by this appeal, it appears that when Samuel Sillyman conveyed the present hotel property to Gaius Moore, on May 1, 1830, his deed described it as extending in depth from Center street 100 feet and bounded southwesterly by a twelve feet wide alley, for a distance of eighty-one feet to another twelve feet wide alley, leading eastward into Center street. It is claimed that this alley is still appurtenant to all subdivisions of the. tract owned at that time by Sillyman, including plaintiff’s property.

Sillyman afterwards, in 1845 and 1846, became the owner of the entire tract and continued to own it until 1859. During that time he divided it into seven different lots, as appears from the recitals in the deed of John P. Hobart, sheriff, to John Hughes, which refers a number of times to “ Samuel Sillyman’s map or plan.” In 1859 the entire tract was levied upon and sold by the sheriff under a judgment against Silly-man. The property was advertised, sold and conveyed by the sheriff according to Sillyman’s map or plan dividing it into seven parts. All the lots were purchased by John Hughes, who thus became owner of all the ground that Samuel Silly-man had owned. On October 1, 1859, Hughes conveyed the hotel property to William Matz, describing it as extending westwardly from Center street along the south side of Mahantongo street ninety-nine feet nine inches and giving the grantee the right to an alley leading southwardly from Mahantongo street, eleven feet seven inches wide and forty feet in length, said right to be enjoyed in common with the owners and tenants of other property in the same square formerly owned by Samuel Sillyman. On January 15, 1864, Hughes conveyed the property now owned by plaintiff: to John Silly-man, plaintiff’s predecessor in title, subject to the right in the alleyway previously granted to Matz. Hughes had also conveyed ground on Center street to Bright & Lerch, with the privilege of an entrance from Mahantongo street. See Bright v. Allan, 203 Pa. 386.

It is claimed by appellant that although the easement created by laying out the twelve feet wide alley in 1830 may have become merged in the fee, when Samuel Sillyman became the owner of both in 1846, nevertheless, when Sillyman’s title was divested by the sheriff’s sale, and the purchaser sold various portions of the land to different persons, the easement was revived and inured to the benefit of all portions of the original tract, including appellant’s property.

But when both the dominant and servient estates became vested in the same person, they merged, and the easement was extinguished. Sillyman being then the owner of the entire estate, without its being subject to any easement or servitude, made a division of it into lots, as he had a perfect right to do, but whether or not he provided for any alley leading from Mahantongo street does not appear, as the plan itself has not been found. The sheriff sold according to this plan, without mentioning any alley, and Hughes, the purchaser at sheriff’s sale, took the same estate in the entire tract as Sillyman had held, subject to no easement whatever, unless it was an apparent one. When Hughes conveyed to Matz, he created a new easement over what was then his own ground, the present alleyway eleven feet seven inches wide and forty feet in length. Neither Sillyman nor Hughes ever did anything which indicated an intention to revive the right to the twelve feet wide alley mentioned in the deed to Gaius Moore.

“ Where there is a union of an absolute title to and possession of the dominant and servient estates in the same person, it operates to extinguish any such easement absolutely and forever for the single reason that no man can have an easement in his own land:” Washburn on Easements and Servitudes (4th ed.), * 518.

“ The effect of again separating the ownership of these estates in reviving these easements varies essentially according to the nature and character of these easements. In some cases the law, in order to give effect to a grant, restores the former easement to the estate granted, while in others this can only be done by express terms in the deed. And whether an easement shall revive or not upon the alienation of one of the estates, may depend upon the act of the owner while holding both: ” Washburn on Easements and Servitudes, *522.

The same author in chap.V. sec. 2, * 523, considers at length the effect of conveying one of two estates in reviving former easements: His conclusion is that the easement is not revived, unless it is natural, like the flow of water in a natural stream, or (* 524) “ necessary to the enjoyment of the one parcel or the other, as in the case of ways; though by making the new grant in such a case, it is rather the creation of a new right of way by implication, than the reviving of a former one, and ways thus created are appurtenant only so long as the necessity continues.” No testimony appears which shows that the use of the twelve feet wide alley was apparent and continuous during the time Sillyman held title.

Appellant argues that appellees have failed to show title to the ground immediately in the rear of his property, because in the sheriff’s deed to John Hughes the courses and distances mentioned for lot No. 2 (the hotel property), if plotted, will not include that ground. This is true, and it is also true that these courses and distances cannot possibly be exactly followed. The last course reads “ Thence northwardly parallel with Mahantongo street 134 feet 9 inches.” But Mahantongo street runs east and west, and a line extending northwardly could not be parallel with it. The prior course was parallel with Mahantongo street, so this one would not be. If the line were extended parallel to Mahantongo street the description would not close.

Defendant’s witness A. B. Cochran, the surveyor, explains the discrepancy by saying that a course is evidently omitted, and he supplies the missing course from the description of note No. 4, which makes the description of No. 2 sensible and covers the entire hotel yard. The subsequent deed from Hughes to William Matz describes the ground in a different manner, starting from the comer of Center and Mahantongo streets, and bounding the entire yard, closing around without any trouble. The same description is followed in the subsequent conveyances.

An examination of Cochran’s plan and a comparison with the sheriff’s deed, shows that it is correctly made and the omitted course is properly supplied. It was manifestly the intention of the sheriff to sell all the ground belonging to the defendant in the execution, not to leave a strip in the middle of the square unsold. Matz and his successors in title took possession of this ground, erected a stable and shedding upon it and have used it for the purposes of their business from that day to this.

The last position taken by appellant he does not make clear. Having abandoned the claim set up by his bill of a right of way in the rear of his own premises acquired by prescription, he now appears to claim an easement in the entire hotel yard in common with the other owners of ground abutting upon it. This claim is sought to be established by evidence (1) that the yard has been constantly used by Bright & Lerch and their customers as a passageway to and from the rear of their store, and (2) that at various times in the past the occupants of the properties abutting on the yard have used it for the purpose of access to the rear of their premises, putting in coal, removing ashes, etc., that way, and in the case of the post office receiving mail through the yard.

The use of the yard for access to the store of Bright & Lerch was under an express grant from John Hughes of a right of entrance from Mahantongo street and was a privilege personal to Bright & Lerch and their grantees; see Bright v. Allan, 203 Pa. 386. It could not inure to the benefit of appellant.

The court below found that “ The use of the ground, according to the testimony of Mrs. Drumheller, widow of Jesse JDrumheller (and daughter of William Matz), as well as according to the testimony of other witnesses for both complainant and respondent, was clearly a permissive use and was not continuous and uninterrupted.”

If the use of a way is merely a permissive use, no presumption of grant can arise from lapse of time; in order to establish such right, the user must be adverse, not permissive: Demuth v. Amweg, 90 Pa. 181.

Where the use is with the knowledge and acquiescence of the owner of the land traversed, and is under his leave and favor, and at his will, no title by prescription can arise: Root v. Com., 98 Pa. 170.

“ The occasional exercise of a power over the lands or property of another during a period of twenty-one years is not enough to make title by prescription or limitation. The exercise of the power must be continuous, uniform and adverse. The occasional theft of a timber tree from the lands of one’s neighbor could not, no matter how long continued, confer a right on the thief to take away a timber tree at his pleasure. If, however, he goes upon his neighbor’s land and remains in open, continuous, adverse possession for the requisite time, he will acquire title to the land and the timber upon it. There must be something to call the attention of the owner to the adverse claim, such as an invasion of the possession of land, the assertion adversely to himself of a right, and the like : ” Hughesville Water Co. v. Person, 182 Pa. 450, 453.

It appears from the evidence that the ground immediately in the rear of appellant’s building has not been used by him since that building was erected in 1895, there being no rear entrance. For a number of years there has been a carriage shed, erected and used by the owners of the hotel, immediately south of appellant’s line which was in constant use by the patrons of the hotel. By the testimony of defendant’s witness Quinn, the shed was erected in 1886 or 1887.

We think the conclusions reached by the court below, are fully justified by the evidence contained in the record. None of the specifications of error are sustained, and this appeal is dismissed at the cost of appellant.


text:
    Woodbury, Appellant, v. Allan.

      Easement — Bight of way — Permissive use — Presumption of grant — Adverse use.

    If the use of a way is merely a permissive use, no presumption of- grant can use from lapse of time.
    Even where a right of way or other easement has been acquired by grant twenty-one years’ occupation of the land adverse to the easement and inconsistent with it bars the right.

      Argued Feb. 12, 1906.
    May 24, 1906 :
    Appeal, No. 13, Jan. T., 1906, by
    plaintiff, from decree of C. P. Schuylkill Co., Nov. T., 1904, No. 2, dismissing bill in equity in case of W. K. Woodbury v. William L. Allan, Clyde G. Allan and M. Louisa Allan.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The facts are stated in the opinion of the Supreme Court.

      Frror assigned among others was in dismissing the bill.

      W. K. Woodbury, with him J. F. Whalen, for appellant.

      It. IT. Koch, for appellees.
   Opinion by

Mr. Justice Potter,

The premises of appellant in this case are situated on the south side of Mahantongo street in the borough of Pottsville, and have a frontage of forty-one feet on said street, and a depth of forty feet. The property adjoins that of J. H. Zerbey, in whose case, which raised substantially the same questions as those here involved, an opinion has just been filed. The deeds to the property of the appellant in this case do not vest in him any express right to the use of the alley, on the east side of the Zerbey lot. But the bill avers that the alleyway on the east of Zerbey’s land “ led to an open court in the rear of the buildings erected on Mahantongo and Center streets on the lots herein above described; that said court long before and ever since the year 1859 has been used by those owning property abutting thereon for the purpose of driving in and out with teams and turning said teams, as well as for loading and unloading goods and merchandise, and for entrance to the rear or southern part of said premises by their predecessors in the title, as well as by other tenants, employees and customers, and for the purpose of ingress, egress and regress to the rear of said property.” The grounds upon which appellant bases his claim are not very clearly set forth, but the intention apparently is to claim a right by prescription to the use of the court or yard in the rear of his premises, in common with the owners of other abutting properties. But the court below found as a fact that no such right was established by the testimony. Many witnesses were called and examined, but their testimony failed to show an adverse and uninterrupted use of the hotel yard as claimed by appellant. It does appear that the yard was used for access to the rear of Bright & Lereh’s premises on Center street, but this was under an express grant, and was a privilege personal to the owners and occupants of that property; see Bright v. Allan, 203 Pa. 386. The testimony also shows that some of the properties abutting on the yard had access to it from their premises, and that frequently coal had been delivered and ashes taken out in that way, but the court below finds as a fact from the evidence that whatever use of the hotel yard was made in this way, was not adverse, but was merely permissive. The court further finds as a fact from the uncontradicted evidence that there has been no entrance from the property now owned by appellant into the yard or court in its rear since 1866. It appears that as long ago as 1877 the owner of the hotel had a frame carriage shed erected immediately back of. and on the line of appellant’s premises, and in 1878 erected also a brick stable and shedding which covered the entire rear of his property. This stable and shed were used for the purposes of the hotel and its guests, and were maintained until torn down by appellees for the purpose of erecting the building which is now under way, the construction of which appellant seeks to enjoin. The court below found as a matter of fact that neither appellant nor his predecessors in title have used the yard for any purpose whatever during the past forty years, and that the owners of the hotel have made an adverse use of the portion adjoining appellant’s premises for a period longer than twenty-one years, and it was therefore held that the evidence did not establish any such a state of facts as would entitle the appellant to an injunction, and the bill was therefore dismissed. Under the facts found by the trial judge, we think the conclusion of law reached by him was entirely correct. In Nitzell v. Paschall, 3 Rawle, 76, Chief Justice Gibson said (p. 82): “ It is certainly true that a right of enjoyment may be lost in the same way it has been gained, and when acquired by' an adverse user after twenty years, it may, I should suppose, be lost by non-users for the same period.” Even when a right of way or other easement has been acquired by grant, twenty-one years’ occupation of the land adverse to the easement and inconsistent with it bars the right: Yeakle v. Nace, 2 Whart. 123 ; Lindeman v. Lindsey, 69 Pa. 93. We think the evidence was quite sufficient to sustain the findings of fact of the court below, and we see no error in its conclusions of law. Much of the discussion in the opinion which has just been filed in Zerbey v. Allan, ante, p. 383, is equally applicable to the present case.

None of the assignments of error are sustained and this appeal is dismissed at the cost of the appellant.


author: Me. Justice Elkin,

text:
    Cooke v. Doron, Appellant.

      Husband and wife — Curtesy—Title by descent — Alien husband — Act of February 23, 1791, 3 Sm. L. 4.
    Under the Act of February 23, 1791, 3 Sm. L. 4, which provides “that alien citizens shall be capable of acquiring or taking by devise or descent, lands and other real property within this Commonwealth in the same manner as citizens of this state may or can do,” an alien husband is entitled as tenant by the curtesy to the real estate, or any interest therein, of which the wife died seized.
    A tenancy by the curtesy is a tenancy by descent and not by purchase, within the meaning of the word “descent” as used in the act of February 23, 1791.
    Argued February 21, 1906.
    Appeal, No. 5, Jan. T., 1906, by defendant, from judgment of C. P. Bucks Co., Sept. T., 1903, No. 1, on case stated for plaintiff in suit of Joseph C. Cooke v. William E. Doron.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine title to an interest in real estate.
    From the case -stated it appeared that Catharine H. Doron, was a sister of the defendant and seized with him as tenant in common of certain real estate in Bucks county. In 1893 Catharine II. Doron married Joseph C. Cooke, the plaintiff. Mrs. Cooke died on August 16, 1894, intestate and without issue, leaving to survive her, her husband, the plaintiff. It further appeared that Joseph C. Cooke was at the time of his marriage and has continued to be a citizen of the United Kingdom of Great Britain and Ireland. During the lifetime of Mrs. Cooke the defendant had charge of all the real estate of which he and his sister were tenants in common, and collected the rents thereof. After the death of Mrs. Cooke, the defendant refused to recognize that the plaintiff had an interest in the land as tenant by the curtesy, and refused' to account to him for one-half of the rents which he had collected.
    The court in an opinion by Stout, P. J., entered judgment for plaintiff for $3,272.

      Error assigned was in entering judgment for plaintiff.

      Alex. Simpson, Jr., with him Howard I. James, for appellant.
    An alien who has not declared his intention to become a citi-. zen of the country is not entitled to a tenancy by the curtesy in the real estate of his deceased wife, who was a native born citizen: Deni v. Penna. R. R. Co., 181 Pa. 625; Rubeck v. Gardner, 7 Watts, 455; Reese v. Waters, 4 W. & S. 145; Rubeck v. Gardner, 7 Watts, 455; Reese v. Waters, 4 W. & S. 145; Jackson’s Lessee v. Burns, 3 Binn. 75; Orr v. Hodgson, 17 U. S. 453; Phillips v. Moore, 100 U. S. 208; Shippen v. Izard, 1 S. & R. 222; Ro Bardo v. Murphy, 64 Mo. App. 90; Crow v. Kightlinger, 25 Pa. 343; Lancaster County Bank v. Stauffer, 10 Pa. 398; Harris v. Ins. Co., 50 Pa. 341; Clarke’s App., 79 Pa. 376; Commissioners of Rouse’s Estate v. Poor District, 169 Pa. 116; Ondis v. Banta, 7 Kulp, 390; Com. v. Detwiller, 131 Pa. 614; Yoders v. Amwell Twp., 172 Pa. 447; Earp v. Cummins, 54 Pa. 394; Cohens v. Virginia, 19 U. S. 264; Shortall v. Hinckley, 31 Ill. 219; Rose v. Sanderson, 38 Ill. 247; Jacobs v. Rice, 33 Ill. 369 ; Fitzgerald v. Brennan, 57 Conn. 511 (18 Atl. Repr. 743); Sill v. White, 62 Conn. 430 (26 Atl. Repr. 396) ; Melvin v. Proprietors of Locks & Canals on Merrimack River, 33 Mass. 140; Foster v. Marshall, 22 N. H. 491.

      May 24, 1906 :

      Ruby R. Vale, with him Hugh B. Mastimrn and Edward W. Mag ill, for appellee.
    The harsh common-law principle which denies the rights of aliens as to real property has been abolished in Pennsylvania by enabling statutes which expressly give to alien friends the right to acquire, take and hold lands by purchase, devise, descent, operation of law or otherwise; and to dispose of the same in the same manner as citizens may do.
    Tenancy by the curtesy is a tenancy by descent: Emmett v. Emmett, 82 Tenn. 369; Watson v. Watson, 13 Conn. 83; Witham v. Perkins, 2 Maine, 400; Commissioners of Rouse’s Estate v. Poor District, 169 Pa. 116; Sumner v. Partridge, 2 Atk. 46 ; Pemberton v. Hicks, 1 Binn. 1.
   Opinion by

Me. Justice Elkin,

The question raised by this appeal is whether an alien husband is entitled as tenant by the curtesy to the real estate, or the interest therein, of which his wife died seized. At common law an alien cannot be tenant by the curtesy in this state. This rule is not questioned, and cannot be under the authority of our cases: Jackson’s Lessee v. Burns, 3 Binney, 75; Orr v. Hodgson, 17 U. S. 453; Rubeck v. Gardner, 7 Watts, 455 ; Reese v. Waters, 4 W. & S. 145. The burden is therefore on an alien husband to point to the act or acts of assembly giving him the right to take such an estate in order to support his claim thereto. There are a number of statutes relating to the rights of aliens, but the Act of February 23,1791, 3 Sm. Laws, 4, is mainly relied on by the court below and by the appellee here. It provides “ that alien citizens shall be capable of acquiring or taking by devise or descent lands and other real property within this commonwealth in the same manner as citizens of this state may or can do.” The language of this act would seem to be broad enough to include a tenancy by the curtesy, but it is contended with much force that it has not been so construed, and that a different construction must have been placed upon it in Reese v. Waters, 4 W. & S. 145. It is true it was decided in that case that an alien husband acquired no title in his wife’s real estate of inheritance as tenant by the curtesy initiate. It was there contended that the act of 1818, which allowed aliens to purchase real property subject to a limitation as to quantity, gave an alien husband the right to take as tenant by the curtesy. In the decision of that case it was held that the act of 1818 did not include such an estate because it was doubted whether the verb “ to purchase ” as used in the act could be considered equivalent to or synonymous with the words “ to take by purchase.” That case seems to have been ruled on this ground alone. The act of 1791 was not mentioned, and so far as the record shows was not considered. Whether it was deemed obsolete, not applicable,- or immaterial, under the facts of that case, we have no means of ascertaining. It could scarcely have been regarded as obsolete because in Rubeck v. Gardner, 7 Watts, 455, decided in 1838, four years before Reese v. Waters, it was recognized as in force, but held inapplicable to the facts of that case on the ground that the heir or devisee of an alien could not take and enjoy a greater and more entire estate than the alien ancestor himself had. It is therefore a fair inference that the act of 1791 was either overlooked, or considered inapplicable under the particular facts upon which the case of Reese v. Waters was decided. The fact is, however, that in no reported case has the word “ descent ” found iii the act of 1791 been construed by this court as applied to a tenant by the curtesy. This act has not been repealed in express terms, nor by necessary implication, and does not contain any limitation as to time. It must therefore be considered in force and effect. Counsel for appellant concedes this position, but contends that the word “ descent ” as used therein does not technically include a tenancy by the curtesy. In answer to this position it may be said that all modes of acquiring title to real property may be reducible to title by descent and title by purchase. The first includes title by act or operation of law, the second title by act or agreement of the parties: 4 Kent’s Commentaries, p. 446; Pingrey on Real Property, pp. 116, 118; 1 Boone on Real Property, sec. 262. It is no doubt true that some estates are difficult to classify under these general divisions of title. It may also be conceded .that an estate by the curtesy is one of these. However, it is clear, on principle, that a tenancy by the curtesy is more in the nature of an estate by descent than by purchase. The great weight of authority is to this effect. Titles by curtesy and in dower, arising by operation of law upon the death of the wife or husband as the ease may be, seem to fall properly under the head of title by descent: 4 Kent’s Commentaries, p. 874. It devolves upon him (the husband) as the estate of an ancestor does upon an heir: 1 Washburn on Real Property, p. 343. An estate by curtesy occurs by mere operation of law upon the death of the wife, and for that reason partakes more of the character of an estate acquired by descent than purchase: 1 Kerr on Real Property, 627. He (the husband) takes it by operation of law as by descent: 1 Tiffany on Real Property, p. 501. It is an estate by descent, and has therefore been held to be subject to all the equities in respect to it as against his wife: Fallon on the Law of Conveyancing in Pennsylvania, p. 555. An estate by the curtesy consummate partakes more of the character of an estate acquired bj^ descent than of one acquired by purchase: 8 Am. & Eng. Ency. of Law (2d ed.), p. 517. These text-writers are supported by some of our adjudicated cases. Mr. Justice Yeates in Lessee of Pemberton v. Hicks, 1 Binney, 1, said: “It is, however, settled that tenants by the curtesy and in dower come in by descent merely by act of law.” To the same effect are the cases of other jurisdictions : Watson v. Watson, 13 Conn. 83; Witham v. Perkins, 2 Maine, 400.

We have examined with care the able argument of counsel for appellant relating to this question, but have not been convinced that the word “ descent” in the act of 1791 does not include an estate by the curtesy. We can see no reason why an estate which devolves upon the husband by operation of law at the death of his wife should not be regarded as taken by descent. The trend of our legislation has been to treat alien friends in these respects as citizens. The decision in Reese v. Waters was followed by the Act of April 16, 1844, P. L. 274, and while we are not prepared to accept as final and conclusive the view of the court below, not without merit, that this act should be construed to be retrospective as to lands acquired by purchase and prospective as to lands taken by descent, it, however, does show that our legislature was blazing the way to the open-door policy in dealing with the right of aliens to acquire and hold real property. Our attention has not been called to any case decided by this court, nor have we been able to find any that expressly holds an estate by the curtesy is not one taken by descent. In Commonwealth v. Detwiller, 131 Pa. 614, Mr. Justice Williams in discussing the enabling statutes so far as they relate to aliens, said: “ Even as to real estate, the distinction as between a resident alien friend and a citizen has disappeared in Pennsylvania, and nearly every other state in the union.” The learned Justice referred to the act of 1807, wherein it is provided generally that alien friends resident within our state may purchase lands, tenements and hereditaments and have and hold the same in fee simple or any lesser estate, as fully to all intents and purposes as the natural born citizen may do.' Counsel for appellant recognizes the force of the doctrine announced in that case, but insists that the general discussion relating to the right of aliens is obiter dicta. This may be conceded, but it is a judicial suggestion at least that courts will not be astute in the application of refined distinctions in support of a public policy, once considered wise, but now disavowed and almost forgotten in the broader humanity manifested in the reciprocal relations of states and nations governed by the Anglo-Saxon race. Cessante ratione, cessat ipsa lex.

The tendency of our legislation has been to enable aliens to take, hold and purchase real estate and other property in the same manner as other citizens. This is clearly indicated by the Act of May 1, 1861, P. L. 433, which provides that “ aliens may hereafter purchase and hold real estate in this state, not exceeding in quantity 5,000 acres, nor in net annual income $20,000.” The evident intention of this act was to enable aliens to purchase property within the limitations as to quantity and value named, and to hold property within the same limitations. The legislative meaning may be in doubt. It may be that the word “hold ” as used in this act only applies to property actually purchased. It is not necessary, however, to give it this restricted meaning, and we see no reason why it may not apply to any estate which an alien takes or holds from any source, that is to say, an estate by descent, by purchase or in any other way, if, as contended, there is some other way to acquire title. The primary significance of the word “ hold ” as it relates to real property is to enjoy and possess, and certainly an estate by the curtesy can be enjoyed and possessed by the tenant. If the word “ descent ” in the act of 1791, or the words “purchase” or “hold” in the act of 1861 include in either act an estate by the curtesy, the judgment of the court below must be affirmed. If it is an estate by descent, it is included in the act of 1791. If it is an estate by purchase, it is covered by the act of 1861. Then, again, if the word “ hold ” as used in the latter act relates to any kind of title, as by descent, or purchase, or otherwise, the contention of appellant cannot prevail. In either view the appellee is entitled as tenant by the curtesy to the enjoyment of the real estate of which his wife died seized. It requires a nicety of refinement, not convincing to the court, to hold that an estate by the curtesy does not come within the meaning of any of these provisions of our statutes. The common-law rule is harsh and unjust, without justification under existing governmental conditions and manifestly at variance with the spirit of our institutions and the conscience of our people. Fortunately our statutes do not require its enforcement.

Judgment affirmed.


text:
    Shirey v. Consumers’ Gas Company, Appellant.

      Negligence — Gas company — Explosion—Province of court and jury.

    In an. action against a gas company to recover damages for injuries caused by the explosion of gas it was admitted that defendant’s gas main broke, that gas escaped therefrom, and found its way into the plaintiff’s house where it exploded. A policeman testified that he had smelled gas in the street in the vicinity a night or two before the explosion. Three witnesses testified that the fractured edges of the gas pipe when examined after the explosion showed in part indications of an old fracture. There was a dispute as to the cause of the break of the gas main. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.
    A company dealing with a substance so dangerous as gas must be held to a high degree of care, and the exorcise of every reasonable precaution in guarding against accidental injury.
    Argued Feb. 26, 1906.
    Appeal, No. 77, Jan. T. 1905, by defendant, from judgment of C. P. Berks Co., Jan. T., 1902, No. 18, on verdict for plaintiff in case of Milton L. Shirey v. The Consumers’ Gas Company.
    May 24, 1906 :
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Trespass to recover damages for injuries caused by the explosion of gas. Before Endlich, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,296.80. Defendant appealed.

      Error assigned amongst others was in refusing to enter judgment for defendant non obstante veredicto.

      Richmond L. Jones, for appellant.
    A high duty is imposed upon the gas company, but that duty must be defined by the court and not by the jury, and it has never been held that it is the duty of a gas company to maintain a line of sentinels covering sixty-four miles of mains : McKenna v. Gas Co., 193 Pa. 633; Custer v. B. & O. R. R. Co., 206 Pa. 529; Scanlon v. Rapid Transit Co., 208 Pa. 195.

      Cyrus 6r. Derr, with him Harvey E. Heinly, for appellee,
    cited: Heh v. Consolidated Gas Co., 201 Pa. 443 ; Devlin v. Beacon Light Co., 198 Pa. 583.
   Opinion by

Mr. Justice Potter,

The appellant here complains of the refusal of the court below to enter judgment for the defendant, non obstante veredicto on the points reserved, and of the refusal to give binding instructions to the jury in favor of the defendant. We think that there was a substantial question of disputed fact in this case which the court could not properly have taken from the jury. It is admitted that defendant’s gas main broke, that gas escaped therefrom, and found its way into the house of the plaintiff, where it exploded and caused damage. There was some evidence on the part of the plaintiff, given by a policeman, that he had smelled gas in the street in the vicinity a few nights previously, or at least a night or two before the explosion. There was also testimony on the part of three ivitnesses that the fractured edges of the gas pipe, when examined after the explosion, showed in part indications of an old fracture. There was also a dispute as to the cause of the break in the gas main. The defendant maintained that it was due to the undermining of the supporting earth beneath it by a jet of water issuing from a leak in the water service pipe. The plaintiff on the other hand denied the existence of this leak in the water pipe prior to the explosion of the gas, and contended that the leak in the water pipe was the result of the explosion; and the jury seems to have agreed with the contention of the plaintiff in this respect. But no matter how the break occurred, as the learned trial judge well said, the gas company “ could not suffer the escape of gas to go on and imperil the plaintiff’s and other neighboring properties,” and he very properly held that the question of the liability of the defendant, without regard to the cause of the original break in the pipe, must depend upon whether it exercised due care in the maintenance and inspection of its pipe lines. As has been repeatedly pointed out, a company dealing with a substance so dangerous as gas must be held to a high degree of care, and the exercise of every reasonable precaution in guarding against accidental injury. Our review of the evidence as it is presented to us by this record leads us to coincide with tbe conclusion reached by the trial judge, that tbe case could not “ consistently with established principles, have been taken from the jury on the grounds contended for by defendant.” It is peculiarly appropriate that evidence, of the character involved in this and similar cases, should be submitted to the determination of the jury. See Hartman v. Citizens’ Natural Gas Co., 210 Pa. 19 ; Olive Stove Works v. Gas Co., 210 Pa. 141.

The assignments of error are overruled, and the judgment is affirmed.