author: Mr. Justice Mestrezat,

text:
    Anderson, Appellant, v. Lower Merion Township.

      Constitutional law — Sewers—Townships of the first class — Act of February 23, 1905, P. L. 22.
    The creation and maintenance of a sewerage system for a municipality is clearly a municipal function, and hence the legislature may confer authority for the purpose on a class of municipalities without impinging the constitution.
    The Act of February 23, 1905, P. L. 22, entitled “An Act to provide for charging the cost of construction of sewers and drains heretofore or hereafter constructed in townships of the first class against properties accommodated or benefited thereby; authorizing the township commissioners to create sewer districts, to apportion the cost of sewer construction among the same, and to prescribe the manner in which the charges shall be assessed on properties, and municipal liens filed for the same, or to assess an annual tax for the payment of such cost,” is not unconstitutional insofar as it gives townships of the first class the power to divide the township into sewer districts and provide for alternative methods of assessment on properties benefited.
    Under the act the township authorities may apply the foot front rule to a densely populated sewer district, and the rule of assessment according to benefits to a sewer district where the properties are of a rural character.
    The Act of February 23, 1905, P. L. 22, is not unconstitutional, in authorizing the township commissioners, instead of the court, to appoint viewers to ascertain the benefits accruing from sewer improvements.
    The Act of February 23, 1905, P. L. 22, does not offend against article IX, sec. 1 of the constitution, which provides that all taxation must “be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws;” nor does the act exceed the general powers of taxation conferred upon the legislature; nor is its effect to confiscate private property in violation of the restrictions of the declaration of rights; nor is it unconstitutional because retroactive in character as to a township which had already paid for a sewer improvement; but the act is unconstitutional insofar as it authorizes the assessment of benefits where the sewer had passed through private lands.
    Argued Feb. 5, 1907.
    Appeals, Nos. 345, 347, 350 and 351, Jan. T., 1906, by plaintiff, from decrees of C. P. Montgomery Co., June T., 1905, Nos, 8, 9, 11 and 16, on bills in equity in cases of Joseph W. Anderson et al. v. Board of Township Commissioners of Lower Merion Township.
    Before Mitchell, O. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Bills in equity for an injunction.
    The court, Swartz, P. J., and Weand, J., filed the following adjudication:
    Lower Merion is a township of the first class. The board of township commissioners constructed sewers in certain sections of the township. Assessments for benefits were made under the act of February 23, 1905, against properties situate in said sections or districts to collect the cost of the construction of the service sewers. The several bills in equity were filed by property owners to restrain the collection of the assessments made against their properties. It is contended that the assessments are illegal because the proceedings under which they were made are based upon an act of assembly that is in conflict with the constitution of the state; secondly, that the sewers constructed were paid for'by loans created under a vote of the electors of the township and by an ordinance of the commissioners, and that such action was conclusive against any further assessment to pay for the construction of the sewers; and thirdly, that the methods of assessment invoked are illegal, and cannot be enforced even if the properties are liable to assessment.
    In our findings and conclusions we have not separated the cases. Bills Nos. 8, 9 and 16 relate to properties located within the limits of the third sewer district. Bill No. 11 relates to properties located either in the first district or in the second district.
    In districts one and two the assessments are made in proportion to the frontage of each property abutting oh a sewer, while in district three, the assessment against each property is determined by viewers appointed by the board of township commissioners.
    Where the findings and conclusions did not relate to all the bills there is no difficulty in referring them to the proper bill when we keep in mind the two district methods of assessments —the one the foot front rule; the other assessment by viewers appointed by the township commissioners.

      FINDINGS OF FACTS.
    1. Lower Merlon is a township of the first class and became such in the year 1900.
    2. On April 16, 1902, the board of township commissioners passed an ordinance to establish and maintain a system of sewers, culverts, pipes and drainage to dispose of domestic drainage and sewage in said township. A system of sewers was designated on plans and maps and was subsequently constructed. The work was completed prior to February 23, 1905, but within six months of said date. The action of the township commissioners was in pursuance of the authority conferred upon them by the act of the general assembly, approved May 24, 1901, P. L. 294.
    3. The township commissioners ascertained that the cost of the sewer system would amount to more than two per centum of the last preceding assessed valuation of taxable property in said township. They resolved to submit to the electors the question, whether an indebtedness of $250,000 should be incurred “ for the purpose of paying the cost of constructing a system of sewers and drainage in said township as heretofore planned and adopted, including the pumping engines and necessary appurtenances.” A majority of the votes polled in the whole township was in favor of incurring the said indebtedness. After this vote of the electors, the township commis- - sioners on May 20, 1903, accepted the bids of the contractors for the construction of a portion of the system of sewers. Bonds were issued for the purpose of securing the loan of $250,000, and these were negotiated and the money was realized by the township commissioners.
    4. On June 17, 1903, the board of township commissioners appropriated $250,000, or so much thereof as may be necessary, to the committee on health and drainage for the purpose of constructing a system of sewers for said township in accordance with an ordinance passed and approved April 16, 1902.
    5. It was ascertained that the loan of $250,000 was insufficient to pay for the projected sewer system, and on June 1, 1904, the board of township commissioners passed an ordinance authorizing an additional loan of $200,000 to complete the sewer system. Bonds to this amount were also negotiated, and on July 20, 1904, the board of township commissioners, by ordinance, appropriated $140,000 out of said second loan, to the committee on health and drainage for the purpose of sewer construction.
    6. The entire cost of the sewer sj^stem, including pumping stations, receiving tanks and discharge pipes was $424,741.75. All of this sum was paid or provided for from the proceeds of the two loans aforesaid. This sewer system so constructed and paid for is the identical system now in use. The assessments in controversy are for benefits, and the commissioners demand from the property owners the payment of over $300,000 of the said expenditure of $424,000.
    7. By ordinance of the board of township commissioners, property owners abutting on said sewers could bo required to connect with and use the sewers of the township. In pursuance of said ordinance the owners of property abutting on the said sewers were notified to connect their respective buildings with said sewers. Failure to observe the order subjected the property owner to certain penalties. The board of township commissioners .also established a rate of annual charges for all persons who connected with the sewers. These annual sewer charges will produce an amount somewhat in excess of the cost of operating and maintaining the sewer system. This action on the part of the township commissioners, requiring connections and annual rentals, was all taken prior to the passage of the Act of February 23, 1905, P. L. 22, and the action was taken by authority of the Act of May 24, 1901, P. L. 294.
    8. The ordinance providing for the issuing of the bonds also states that “ an annual tax is hereby levied upon the taxable property within the township of Lower Merion as the same shall appear by the assessment and valuation thereof,” .for the payment of the interest and the principal of said bonds as they shall mature. These taxes were so levied on June 24, 1903, and June 1, 1904, to cover a period of twenty-nine years, during which time the bonds were to be liquidated.
    9. The sewer system so constructed under the Act of May 24, 1901, P. L. 294, passed in part over private lands, the said act having given the authority for such construction. The act also provided a method of assessing the damages for land occupied where the lines of sewers were not located on public roads. The court of common pleas was to appoint the jury. Several juries were appointed by said court to assess the damages for injury to private property. The complainant for the estate of Wistar Morris (Bill No. 16) had a jury appointed, and the jury in that case awarded damages in the sum of $1,500. The report was filed on February 6, 1905 — that is, before the passage of the act of February 23, 1905. The township commissioners took an appeal from the award.
    10. The money to pay for the entire system of sewers was in the hands of the township commissioners as early as July 20, 1904, when the last appropriation was made to the committee on health and drainage. The annual rates for the use of the sewers were established apparently as early as December 2, 1903. The construction of the sower system was completed, the money for its cost was paid or provided for, and its operation was assured by the enforced connections and the rentals for its maintenance. This was the condition of affairs for some time prior to February 23, 1905, although less than six months intervened between the completion of the system and the date just named.
    11. On March 1,1905, an ordinance was passed by the township commissioners in pursuance of the act of the general assembly of February 23, 1905. According to this ordinance there is no change in the sewer system in the slightest degree, either in construction or operation, but liability of the property owners for the costs of construction is changed. Under the new ordinance the cost of the service sewers — $300,000— is to be paid by the property owners benefited, while under the original proceedings the entire cost was placed on all the landowners within the township.
    The sewer system embraces about 5,300 acres of ground. By the new ordinance this territory is divided into three sewer districts. No. 1 contains 900 acres, upon which 1,086 houses are erected. No. 2 contains 900 acres, and about 247 houses. No. 3 contains 3,500 acres, and about 150 houses.
    In sewer districts Nos. 1. and 2 the ordinance provides for the assessment according to the foot frontage rule. The assessment, however, is only for the cost of the construction of service sewers, that is, the large sewers when used as service sewers are computed at the cost of eight-inch branch sewers. No charge is made .for main sewers not used as service, sewers, and no charge is made for the costs of the pumping star .tions. The assessment, basis in No. 1 is $141,682, while the whole cost of the sewer system chargeable,to this district is nearly $224,000. The assessment basis for No. 2 district is $60,532, while the cost of the whole system in this district is over $64,000. In,No. 1 district the difference between the assessment basis and the actual cost of the system is very; marked, because the pumping stations, tanks and discharge pipes constitute a large part of the whole cost, while in sewer district No. 2 there are no expenses of this character; the sewage is carried off by gravity alone.
    In sewer district No. 3 the ordinance provides for an assessment according to benefits, these benefits to be determined by viewers appointed by the board of township commissioners. The assessment basis is $127,755, the whole cost $136,752.
    12. In. sewer district No. 2 the lines of pipes follow the streets, and do not pass over private land. With a few exceptions this is also true of sewer district No. 1. The only deviation from the streets for any extended distance occurs where a line of pipes runs through lands of Joshua L. Bailey. There is, however, no assessment for this line over private ground. Mr. Bailey'is assessed for the sewer line on. Lancaster avenue, and also for the line on Church street or Lin wood avenue, áñd his property abuts on these streets. The same is true where a line of pipes passes over a section of the Haverford college grounds. The college is not assessed for this through pipe line, but is assessed for the line along Rail Road avenue, upon which the college grounds abut.
    In sewer district No. 3 the pipe lines run over private property at numerous points. In many cases where the line runs through a private tract that property also abuts on a sewer line on a street. In some cases, however, a pipe line passes through a property where that property does not have a sewer line on a street or on any boundary line of the property. Properties, whether in the one situation or the other, were assessed for benefits by viewers appointed by the board of township commissioners.
    13. The properties assessed by the foot front.rule in sewer districts one and two are urban and not rural. The only property used for farming purposes that is assessed in No. 2 is the Lodge tract. This tract has a frontage of 610 feet on Bala avenue, a line wide street. The property is urban, notwithstanding its present use. The neighboring properties to the east and west and on the opposite side of the avenue are urban. The villages of Bala and Cynwyd form this sewer district. There are no farm lands in district No. 1, abutting on any sewer line. The villages of Eosemont, Bryn Mawr, Haverford and Ardmore constitute this sewer district, and there are no intervening rural lands between the end of one of these villages and the beginning of the next. The whole territory in districts Nos. 1 and 2 is devoted to or is ripe for residential purposes, although some of the owners may be unwilling to sell presently. Where the streets and roads are not lined with built up houses and stores, the lands are devoted to line residential homes, ornamented with trees and shrubbery, and enjoy all the comforts of city homes, so far as water pipes, street lights, police and fire protection, and fine streets are concerned. Tiiese houses are occupied very largely by business and professional men engaged daily In the city of Philadelphia.
    14. In assessing for benefits in sewer districts Nos. 1 and 2, the entire cost of the service sewer in each district was divided by the whole number of feet of sewer frontage in the district, and the quotient was taken as the benefit per foot to each property owner whose land abutted on the sewer system. By this computation each foot of frontage was charged a benefit of ninety cents. Apparently the computation in each district produced the same quotient of ninety cents.
    The natural surface of the various streets is somewhat irregular. There was diversity in the conformation of the ground, and upon some streets or lines the sewer trench at sections was more than thirty feet deep, while on other streets or lines the depth was less than three feet. At Thompson street the trench in parts had a depth of thirty-two feet, while at Wyoming avenue the depth was only three and six-tenths feet. In district No. 2 the trench on Bala avenue at some points had a depth of over eighteen feet, while on some of the other streets the depth did not exceed four or five feet. Necessarily the sewer cost on different streets was very disproportionate, even where the size of the pipes is the same. One street has a natural grade in the right direction for a sewer, another must be built through a wrong slope by deep excavation. “A ratio cost made up of the average of these is not an accurate measure of any one of them:” Witman v. City of Reading, 169 Pa. 375.
    15. Certificates have been presented from the clerks of the townships of the first class throughout the commonwealth, and according to these certificates there is no township of the first .class other than Lower Merion, in which a system of sewers or drains was finally completed within six months of February 23,1905.. , The certificates to that effect were offered in evidence from twenty townships of the first class.
    16. The following plaintiffs are owners of properties traversed by sewers or pipe lines. * We find this fact from the evidence and maps before us, but cannot vouch for the absolute correctness of our finding, as the evidence was not specially directed to this inquiry: The Girard Trust Company, trustees for the estate of Wistar Morris, deceased; -Bryn' Mawr Hotel Company, Charles E. Mather, Eulalie W. Leslie, I. Layton Register, Mary P. Ashbridge, Rebecca E. Ashbridge and Lida H. Ash-bridge, tenants in common. Some of the complainants’ properties may abut on private roads having sewers. If so, then in some of these cases their properties may not abut upon any public highway occupied by a sewer line.
    CONCLUSIONS OK LAW.
    1. Under the facts as found by us, the properties in sewer districts 1 and 2 are of such a character and situation that the foot frontruleof assessment is fairly applicable to them.
    2. To charge each property according to the average cost per foot frontage in the whole sewer district is not allowable where the cost of construction of one branch or line, as in the case before us, is entirely disproportionate with the cost of another branch or line. As this was the method used by the commissioners in applying the foot front rule, it follows that the assessments in districts Nos. 1 and 2 are incorrect. Some properties are charged too much, while others are not charged enough.

      3. The assessment of benefits by viewers appointed by the board of commissioners, against properties abutting on. a public street or highway, is not in violation of any provision of the constitution of the state where the benefits are assessed for service sewers located on such highways.
    4. The assessment of benefits against properties by viewers appointed by the board of township commissioners, where a sewer line passes over private property, is illegal. Such assessment must be made by a jury appointed by the court, as the assessment involves damages arising under the exercise of the right of eminent domain. The viewers appointed by the board of commissioners did more than assess benefits. They declare, “ where said sewer extends through private property' we have given due consideration to the question of possible damage to such property caused by the construction of the\ sewer and have weighed carefully the advantages and disadvantages thereof.”
    5. The legislature has the power and authority to impose a tax or municipal assessment for sewer benefits special to the property in townships of the first class, although the improvement for which the tax is assessed was made before the law was enacted which gives the right to assess the tax.
    6. The act of February 23, 1905, is not unconstitutional as to its retroactive feature, even if it be' a fact that this feature will not apply to any sewer system fully completed other than the one in the township of Lower Merion.
    7. The act of February 23, 1905, is applicable to the sewer construction in Lower Merion township, although the work was completed and paid for before the passage of the said act of 1905. The provisions of the act, to the extent that they were used or applied in the assessment of benefits, are not unconstitutional, but the foot front rule was not properly applied and the viewers appointed by the commissioners had no authority under the act to make the assessments as they were made in those cases where the sewer lines passed over private lands. The act does not confer upon the viewers appointed by the commissioners the right to assess damages where the land is taken under the right of eminent domain.
    8. We conclude that the following decrees and orders should be made in the several proceedings :

      And now, after due consideration, it is ordered, adjudged and decreed that the bill filed by Joseph W. Anderson and others, being No. 9, June Term, 1905, be dismissed at the cost of the plaintiffs.
    It is ordered, adjudged and decreed that the defendant commissioners be enjoined from proceeding in any manner whatever for the collection of any assessments set out in the proceedings against any of the properties of the plaintiffs in bill No. 8, June Term, 1905, where the sewer line passes over or traverses the private lands of any plaintiff, and the liens filed against such properties are hereby declared null and void and are stricken from the record.
    The defendant is directed to pay the costs of the proceedings under this bill.
    It is ordered, adjudged and decreed that the assessments made against the properties of plaintiffs in bill No. 11, June Term, 1905, were made upon an improper basis of assessment, and each plaintiff is allowed to show in any proceeding to collect the assessment that his property is charged more by the commissioners’ mode of assessment than its proper share for the sewer in front of it. The defendant is directed to pay the costs of the proceedings under this bill.
    It is ordered, adjudged and decreed that the defendant commissioners be enjoined from proceeding in any manner whatsoever for the collection of the assessment set out in the bill of the Girard Trust Company, trustees of the estate of Wistar Morris, deceased, bill No. 16, June Term, 1905, and the lien filed against the property of said estate is hereby declared null and void, and is stricken from the record, and the defendant is directed to pay the costs in this proceeding.
    On exceptions the court entered the following final decree:
    And now, October 29, 1906, the request for additional findings is refused, the exceptions filed in each case are dismissed, and it is now ordered, adjudged and decreed, after due consideration and deliberation, that the assessments made against the properties of the plaintiffs in bill No. 11, June Term, 1905, were made upon an improper basis, and each plaintiff must be allowed to show in any proceeding on the lien or other proceeding to collect the assessment that his property is charged more by the commissioners’ mode of assessment than its proper share for the cost of the construction of the sewer in front of it. The costs to bo paid by the defendant.

      Errors assigned were the decrees of the court.

      Wm. Righter Fisher and John G. Johnson, with them Montgomery Shams, Townsend, Elliott & Townsend, Louis M. Childs, Wanger & Knipe, George Vaux, Jr., W. W. Montgomery and George S. Graham, for appellants.
    The act is in violation of article IX, sec. 1, of the constitution, which requires that “ All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax; and shall be levied and collected under general laws,” and that it also exceeds the general powers of taxation conferred upon the legislature, and is, in its essence, an act authorizing the confiscation of private property and its application to a public use, in violation of the restrictions of the bill of rights: Hammett v. Phila., 65 Pa. 146; Washington Ave., 69 Pa. 352; Morewood Ave., 159 Pa. 20; Park Ave. Sewers, 169 Pa. 433; Witman v. Reading, 169 Pa. 375; Appeal of the Protestant Orphan Asylum, 111 Pa. 135; Ayars’s Appeal, 122 Pa. 266; Wyoming St., Pittsburg, 137 Pa. 494; Pittsburg’s Petition, 138 Pa. 401.
    The act is in violation of article X V I, sec. 8, of the constitution, which prohibits the legislature from depriving any person of an appeal from any preliminary assessment of damages by viewers, or otherwise, where property has been taken by any corporation or individual in the exercise of the right of eminent domain; and secures to such person, in all cases of appeal, a jury trial for the determination of such damages: Pusey’s Appeal, 83 Pa. 67; Fisher v. Baden Gas Co., 138 Pa. 301; Alt. Pleasant Ave., Tourison’s Appeal, 171 Pa. 38; Beechwood Ave. Sewer Cases, 179 Pa. 490, 494.
    . There are no such constitutional provisions in the act capable of sustaining alone, or in conjunction with each other, proceedings of any kind for the levying of special assessments. If such provisions are to be found there, not in themselves obnoxious to constitutional objection, they are in every instance so interwoven with and dependent upon others that are clearly unconstitutional and void that they cannot be separately preserved and must fall with the act, the whole scheme and purpose of which is fatally out of harmony with constitutional requirements. See Cooley’s Constitutional Limitations, 6th ed., p. 211, etc.; Pittsburg’s Petition, 138 Pa. 401; Ayars’s Appeal, 122 Pa. 266.
    April 1, 1907:

      Rowland Evans and James Alcorn, for appellee.
    The act is constitutional: Reeves v. Traction Co., 152 Pa. 153; Com. v. Guthrie, 203 Pa. 209.
    The provision authorizing the division of the territory supplied by the sewers into sewer districts, and providing for three alternative methods of assessment, is similar to that provided in former legislation which has been repeatedly sustained by this court. See Oil City v. Boiler Works, 152 Pa. 348; Witman v. City of Reading, 169 Pa. 375; Winter v. Reading, 15 W. N. C. 329.
    It is objected that the method of assessment in question is vicious because the assessors were appointed by the township commissioners and not by the court; but assessments of this character have been repeatedly sustained: Com. v. Woods, 44 Pa. 113; Schenley v. Allegheny, 36 Pa. 29; Scranton v. Whyte, 148 Pa. 419; Oil City v. Boiler Works, 152 Pa. 348; Gault’s App., 33 Pa. 94.
    In short, there is nothing novel or original in the act of February 23, 1905. It appears to have copied in large measure from the Act of May 23, 1889, P. L. 277, relating to cities of the third class, the provisions of which, similar to those of the act of 1905, having been repeatedly sustained by the court: Oil City v. Boiler Works, 152 Pa. 348; Scranton v. Whyte, 148 Pa. 419; Witman v. Reading, 169 Pa. 375; Scranton v. Jermyn, 156 Pa. 107.
   Opinion by

Mr. Justice Mestrezat,

These several cases were heard at the same time and decided by the court below in one opinion, and we will dispose of them in the same way. The questions raised on the record have been so satisfactorily considered and determined by the trial court that we rest our decision upon its conclusion. The questions have all been substantially passed upon by this court, as will appear by the authorities cited in the opinion of the court below. It would serve no good purpose to discuss the questions at length which have been adjudicated in those cases.

The many assignments of error filed by the property owners raise substantially the one question, the constitutionality of the Act of February 23, 1905, P. L. 22, and of the ordinance enacted under its authority by the board of township commissioners of Lower Merion township. In many respects wherein the constitutionality of the act is attacked, it is almost identical in language with that part of the Act of May 23, 1889, P. L. 277, relating to sewer construction and assessments in cities of the third class which has been considered and sustained by this court, as numerous cases will disclose.

Townships of the first class were created by the Act of April 28, 1899, P. L. 104, and this court sustained the authority of the legislature in making the classification: Commonwealth v. Blackley, 198 Pa. 372. The general assembly may legislate upon any municipal function relating to that class of townships and it will not offend the constitutional prohibition, against special or local legislation: Reeves v. Traction Co., 152 Pa. 153; The Commonwealth v. Guthrie, 203 Pa. 209. The act of 1905, which is attacked in these proceedings, deals with a subject proper for municipal regulation, and is, therefore, within the legislative province. There are, it is true, some features of the act of 1905 which cannot be sustained, as pointed out in the opinion of the court below, but they are not so interwoven with the balance of the act, that they render the whole statute unconstitutional and void.

The third clause of section 7 of the act of April 28, 1899 conferred upon the board of commissioners the authority to establish a system of sewers and drainage and to require connection to be made with such sewers; and also made provision for the construction, maintenance and repair of the sewers in whole or any part by an equitable assessment upon the properties benefited, in such manner as might be prescribed by ordinance. The Act of May 24, 1901, P. L. 294, amendatory of this clause of section 7 of the former act, omitted the provision authorizing the cost of the sewer to be charged on the property benefited* but conferred power on the township to enter on private lands for the construction of sewers. The act of February 23, 1905 restores the power of the townships to assess the cost of the sewer on the properties benefited. Legislation, therefore, bearing upon townships of the first class has conferred upon such townships the power and authority of other municipalities in regard to the construction and maintenance of sewers, as well as providing for the expenses necessarily incurred for the purpose. As suggested above, the creation and maintenance of a sewer system for a municipality is clearly a municipal function and hence the legislature may confer authority for the purpose on a class of municipalities without impinging the constitution.

As we have said, the act under consideration is very similar to former legislation on the same subject enacted for cities of the third class. We have ruled that it is within the province of the legislature to authorize the division of the territory of a municipality into sewer districts and provide for alternative methods of assessment. See Oil City v. Oil City Boiler Works, 152 Pa. 318. We think it quite clear that there is a necessity for such division in townships of the first class, much more than in boroughs and in cities. Part of the township may be sparsely settled and needing no system of sewers, while other parts of it may be densely populated, as much so as a-borough or city, and needing a system of sewers and drainage. If the legislature can confer authority upon the councils of boroughs and cities to make such divisions, it is quite apparent, we think, that it can confer a like authority upon the commissioners of a first-class township. In the cases before us the court has found that the whole territory in sewer districts Nos. 1 and 2 is devoted to or is ripe for residential purposes, and that the inhabitants enjoy all the comforts of city homes. The properties in these districts were held to be subject to the foot front rule of assessment. On the other hand, the court found that sewer district No. 3 was rural and not thickly populated, and held that it was proper to assess the property in that district according to the benefits derived. The court, therefore, in both instances, followed the well-established rule announced by this court that the foot front rale is applicable to property situated in á city or other densely populated community, and that the rural properties must be assessed according to the benefits derived from the improvement.

The property owners also contend that the legislature could not authorize the commissioners to appoint viewers to ascertain the benefits accruing from the improvement, but the appoint ment of such viewers must be made by the court. This provision of the act of 1905, however, is sustained by Commonwealth v. Woods, 44 Pa. 113, as well as by later decisions of this court. In the Woods case the court held an act of assembly to be constitutional which authorized the councils of Pitts-burg to construct sewers in the streets, and to appoint three viewers to levy and assess the cost upon the property benefited and to make report thereof to the city councils, and provided that the assessment, when approved by the councils, should be a lien on the property assessed. An appropriate ordinance was passed to carry out the provisions of the act of assembly. In delivering the opinion in that case Mr. Justice Read, quoting from Gault’s Appeal, 33 Pa. 94, says (p. 100): “ States and cities cannot exist without taxation. The time, the mode, and the manner of taxation are committed altogether and exclusively to the legislative discretion.” The decisions in that case and in Oil City v. Oil City Boiler Works, 152 Pa. 348 and Winter v. City of Reading, 15 W. N. C. 329, also meet the objection of the property owners that the act should have provided for an appeal from the assessment made by the board of viewers.

It is contended by the property owners that the act offends against article 9, section 1 of the constitution, which provides that all taxation must “ be uniform upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.” That contention, however, is without merit for the reason that? we have held time and again that this section of the constituA tion has no application to assessments for local improvements. In the many decisions on the subject it has uniformly been ruled that this section refers only to such taxes as are of a general nature, and does not apply to such as are levied for local improvements. It is also suggested that the act exceeds the general powers of taxation conferred upon the legislature, and its effect is to confiscate private property, in violation of the restrictions of the declaration of rights. But this position finds nothing to sustain it in the numerous cases of this court cited 'by counsel for that purpose. None of those cases decide that the legislature does not have the power to authorize a. municipality to construct a necessary sewer system and impose the cost upon the abutting property owners according to the benefits derived from the improvement. That is the extent of the authority conferred by the act of 1905 on the board of commissioners of townships of the first class. It is strictly within the rule established by our decisions, which requires the assessment to be made on the basis that the benefits are local and essentially peculiar to the property assessed and that the limit of the benefits is the limit of the taxing power.

It has been suggested, although there is no argument in support of it in the printed brief, that the statute as applied to Lower Merion township is_ retroactive, a¡nd that as the. township had paid for the improvement the legislature could not authorize the commissioners to collect the cost of the sewer off the owners of the property benefited by the improvement. The learned court below has fully answered this contention in the opinion filed. In City of Chester v. Black, 132 Pa. 568, it is said (p. 571): “ The principle has been repeatedly recognized in this state that, where the legislature has antecedent power to authorize a tax, it can cure, by retroactive law, an irregularity or want of authority in levying it, though thereby a right of action which had been vested in an individual should be divested. . . . The constitutionality of this kind of legislation is not open to objection.” In Magee v. Commonwealth, 46 Pa. 358, it was held that an act of assembly was constitutional which authorized the city councils of Pittsburg to grade and pave the streets and to collect the cost and expense from the owners of lots abutting thereon, by an equal assessment upon the front foot of each owner, and providing for the appointment of appraisers to value and appraise the paving, the cost of which had been paid or assumed by the city. In that case one of the points for instruction submitted by the defendant, and which this court held was rightly refused, was the following: “ That if the jury believe that the city of Pittsburg has paid for the paving for which this suit is brought, and that said payments were made from moneys collected by general taxation, and that the property to be subject to the lien here was assessed and taxed for said purpose, and that the amount so assessed was paid, the plaintiff cannot recover.” In re Beechwood Avenue, 194 Pa. 86 was an appeal by a property owner from the order of the court below confirming a report of viewers appointed to assess damages for improving Beechwood avenue in the city of Pittsburg. One of the exceptions to the report of viewers, filed by appellant and overruled by the court, is as follows: “ The cost of said improvement has been provided for by city bonds payable by taxpayers generally, and the present assessment amounts to double taxation, and is unjust, inequitable and illegal.” In sustaining the position of the court below Mr. Chief Justice Stereett said (p. 91):

“ It is a grave error to assume that the cost of the improvement should be paid out of the proceeds of the loan created by the city for the purpose of enabling it to meet deficiencies that will arise in cases where property fronting on improvements of the same kind will be but slightly benefited, relatively, and the city will be obliged to pay nearly all, or at least a very considerable part, of the costs and expenses of such improvements. In providing the fund referred to, it was never intended by the city to relieve from assessments for special benefits ’ any property fronting on her newly improved streets, avenues or boulevards that may be actually benefited specially, that is, benefited over and above the general benefit accruing to it in common with other property in the vicinity of such improvements.” Here the complaining property owners are in error in thinking that the sewer system constructed by the township is a general public improvement and that, therefore, they should not be required to contribute for the benefits they have received from the improvement. The township was divided into sewer districts and the improvements were in those districts, and hence were local to that part of the territory embraced in the whole township. Those districts were the territory accommodated by the improvement and, being local, may be paid for by the abutting property owners.

The learned court below was clearly right in refusing to sustain the legislation in so far as it authorizes the assessment of benefits where the sewer had passed through private lands. In such cases the land is taken, injured or destroyed by virtue of the power of eminent domain, and in the assessment of damages the owner cannot be deprived of his constitutional right to demand a trial by jury.

We fail to see that the act of 1905 deprives the complaining landowners of any constitutional right. Taxation is a- legitimate burden imposed upon the property owner, and Ke must submit to it when he is not discriminated against in behalf of others similarly situated. If the property owners of townships of the first class believe that the method adopted by the act of 1905 for meeting the expenses incurred in constructing and maintaining sewer systems imposes unjust or unequal taxation, their relief must come from the legislative, and not the judicial, department of the government.

The assignments of error in each of the four appeals are overruled, and the decree in each case is affirmed.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Townsend v. Boyd, Appellant.

      Landlord, and tenant — Ancient lease — Adverse possession — Presumption of grant — Mortgage.
    While a tenant is ordinarily estopped from denying his landlord’s title, the rule does not apply to the case of one who comes into possession under a title proclaimed of record to be adverse to the landlord, and who continues in such possession for over sixty years, undisturbed by the landlord, or anyone claiming under him, and especially is this so when the alleged landlord’s title is set up by a stranger.
    Where a lease of land for 2,000 years was created in 1682, and thereafter for 145 years in all deeds, wills and other conveyances, the land was described as the residue of the 2,000 year lease, and in 1823, in partition proceedings, the allotments were made to the allottees in fee, and afterwards for sixty years all of the conveyances were in fee, and there was a continuous adverse possession against all the world, a sale in foreclosure proceedings under a mortgage given after that time will pass a title in fee, and such title will be good as against a purchaser at sheriff’s sale of the unexpired term of the lease taken in execution as the alleged property of the mortgagor.
    After a great lapse of time and a series of circumstances disclosing the enjoyment of an unchallenged title during such period, the courts will presume whatever grant may be necessary to quiet the title. It is not sufficient for a stranger to rest upon an, ancient outstanding title.

      A mortgagor cannot set up as a defense to the mortgage that he had no title to the premises, and this applies to anyone claiming title through the mortgagor.
    Argued Feb. 11, 1907.
    Appeal, No. 55, Jan. T., 1906, by defendant, from judgment of C. P. Del. Co., June T., 1902, No. 137, on verdict for plaintiffs in case of Joseph B. Townsend, Jr., and J. Barton Townsend, Executors of the last Will and Testament of Joseph B. Townsend, deceased, and Charles C. Townsend, substituted executor of said last Will in the place and stead of James P. Townsend, deceased, v. Matthew M. Boyd.
    Before Mitchell, C. J., Fell, Mestbezat, Potteb and Stewabt, JJ.
    Affirmed.
    Ejectment for land in Upper Chichester township. Before Johnson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the defendant presented the following points:
    6. The defendant having acquired title to the leasehold by a sheriff’s sale is entitled to retain possession in this proceeding, and the verdict should be in his favor. Answer: That is refused. We cannot say to you the verdict should be in favor of the defendant. It will be for you to say under all the circumstances. [5]
    7. The mortgage of the plaintiffs being unrecorded in law and being a mere pledge of the land, with no transfer of possession to the mortgagee, is void, as against existing creditors, and it appearing by the uncontradicted evidence that the defendant was an existing creditor, said mortgage is fraudulent and void, as to him, and the defendant is entitled to your verdict. Answer: That is refused. The questions are for you under the instructions of the court. We cannot say, or do not say, to you who is entitled to the verdict. [6]
    The court charged in part as follows :
    [That if, from the evidence in the case, you find that there was a grant which has been lost from this old lessor in 1682 or his heirs, to the predecessors in title of Matthew Boyd, then your verdict should be for the plaintiff.] [7]
    [Now as bearing upon the question of whether or not there was such a (lost) grant, we call your attention to the testimony bearing upon that question — first, this was a leasehold, a tenancy. It was made in 1682 for 2,000 years. The consideration was, as you have been told, a peppercorn and so many shillings — five shillings. I believe it is for each 100 acres of land. Now you will say what bearing that has upon the question of presumption. There was a letting, a lease of 500 acres of land in the township of Upper Chichester to a son for 2,000 years, yielding and paying yearly during the said term unto William Withers, his heirs and assigns, one peppercorn at or upon the feast of St. Michael, the archangel, if the same be lawfully demanded. It was not to be paid outright, but it was to be paid if it should be demanded by the lessor, and also paying and discharging the aforesaid chief or quit rent of a shilling yearly as aforesaid, one shilling for each 100 acres. So you see the consideration of the old lease for 2,000 years, which was to a son, was, if the lessor should demand it, he should pay a peppercorn, and in addition one shilling for each- 100 acres of land. You will say what bearing a lease for 2,000 years, for a nominal consideration, has upon the question whether or not, when in 1823 the owner of this land began to convey it in fee simple — whether it is reasonable to suppose that there was a grant to them and that it had been lost.] [8]
    [When he (Erasmus Morton) died, the husband of one of his children, Thomas Marshall, came into court, in the (should be orphans’ court) court of common pleas of Delaware county in 1823 and filed a petition to have this property of Erasmus Morton parted and divided. In that petition he set out- that this land was real estate, and that Erasmus Morton died seized of it in fee, that is, had divided it^made a partition of it, as the lawyers say; and one of the heirs ■ of Erasmus Morton was awarded a tract, I think of about forty-four or five acres, part of the land in dispute, out of the Erasmus Morton estate. It was awarded to one of the sons, Aaron Morton, and this court made a decree that he should take and hold that property — it was awarded to him — -and' that was in effect awarding the title to him absolutely.] [10]
    [This tract was conveyed to Aaron Morton and Aaron Morton died. I think he died in Delaware. I am not sure. But before he. died he made this will, in which he willed a portion of this land, real estate ; he says : “ I order and direct that all my real and personal estate be sold by my executor either at public or private sale, within one year after my decease, &c., and I further authorize him to convey said real estate to Matthew Bojul at the price of $4,400, say $1,400 in cash,” and appointed John Larkin as his executor. So that this heir of Erasmus Morton, Aaron, made his will on which he recognized this property as real estate, and directed his executors to convey it to Matthew Boyd at a fixed price. John Larkin made a deed in 1858 — -Morton died in 1857 — in which he conveyed this tract of land, forty-four acres, in fee, absolute title, to the person named in the will, Matthew Boyd.] [11 ]
    [Now the plaintiffs ask you to say as to this tract which is included in the lands in dispute — ask you to say from this deed of 2,000 years — this deed of 2,000 years to a son for a peppercorn which he should pay if it was demanded and a shilling for every 100 acres, and from the fact that from 1831 down to 1892, when this land was mortgaged, all the owners of it conveyed it in fee simple, or if they died before conveying, willed it, and tliat it was sold by those in power under their wills and conveyed by the various assurances in fee simple, they ask you to find from that that there was a grant to them which has either been lost or mislaid. In other words, they ask you to presume to find that there was such a grant, and if you do find there was such a grant, then the plaintiffs are entitled to your verdict.] [12]
    [We also say to you that if the plaintiffs have for twenty-one years and upwards — for more than twenty-one years before the bringing of this suit — or those under whom they claim, did enter upon this land in hostility to the owner and did for over fifty years, as it is in this case, occupy it adversely, hostilely, exclusively as their own, then this plaintiff is entitled to your verdict.] [13]
    [Now if Matthew Boyd entered under the will of John Boyd in part and the deed from his brother as to one tract and the John Larkin deed upon the other, if he entered upon that property, hostiloly adversely, claiming to own it in fee simple, and has continued to do that for twenty-one years and upward, then this plaintiff is entitled to recover and in support of that proposition as to the character of his holding — because we say to you that if this entry was hostile, open, adverse possession, exclusive of the lessors, and it continued for upwards of fifty years, we say to you, that that gave Matthew Boyd a complete title to the land, he had a right to mortgage it and the plaintiffs are entitled to recover.] [14]
    Yerdict and judgment for plaintiffs. Defendant appealed.

      Errors assigned were (5-14) above instructions, quoting them.

      William B. Broomall, with him W Roger Fronefield, for appellant.
    It is only where the possession and actions of one cannot be accounted for in any other way than by the presumption that a deed exists for the reversion, that the law will presume such a deed, to prevent injustice, but where his possession is accounted for, without such a presumption, no such presumption exists: Hastings v. Wagner, 7 W. & S. 215; Kingston v. Lesley, 10 S. & R. 383; Hasson v. Klee, 181 Pa. 117; Fox v. Thompson, 31 Pa. 172; Warner v. Henby, 48 Pa. 187.
    A tenant is estopped from setting up against his landlord an adverse title acquired during his term: Galloway v. Ogle, 2 Binney, 468; Cooper v. Smith, 8 Watts, 536; Graham v. Moore, 4 S. & R. 467.
    The deeds purporting to convey a fee were not for the benefit of the lessor, hence he is under no obligation to examine the record : Work v. Prall, 26 Pa. Superior Ct. 104; Henry v. Brothers, 48 Pa. 70; Warner v. Henby, 48 Pa. 187.

      Frank P. Prichard, with him George T. Butler and John G. Johnson, for appellees.
    The circumstances raise a presumption of a grant or extinguishment of the landlord’s reversion prior to the partition proceedings, in 1823 and 1832: Jackson v. Hudson, 3 Johnson, 375; Hastings v. Wagner, 7 W. & S. 215; Taylor v. Dougherty, 1 Watts & Sergeant, 324; Carter v. Tinicum Fishing Co., 77 Pa. 310; Wallace v. Fourth Presbyterian Church, 111 Pa. 164; Fletcher v. Fuller, 120 U. S. 534 (7 Sup. Ct. Repr. 667); United States v. Chavez, 175 U. S. 509 (20 Sup. Ct. Repr. 159).
    The rule that notice to the landlord of the adverse title may be presumed from facts and circumstances is especially true in the case where the adverse possession is set up, not by the tenant himself, but by those who, through a series of conveyances having their origin in the tenant, have derived from him a title supposed and declared to be in fee : Dikeman v. Parrish, 6 Pa. 210.
    April 1, 1907:
    By over sixty years’ adverse possession, under a claim to own the land in fee, Matthew Boyd and his predecessors in title had acquired a fee simple title. If as against the original landlord it should be held that he was estopped from setting up this title, such estoppel would inure only to the benefit of the landlord and those claiming under him. As between a mortgagee and a subsequent execution creditor the latter, not having a landlord’s right of estoppel, could not set up the unclaimed landlord’s title to defeat the mortgage: Francoeur v. Newhouse, 43 Fed. Repr. 236; Northern Pacific R. R. Co. v. Kranich, 52 Fed. Repr. 911; U. S. v. Chavez, 175 U. S. 509 (20 Sup. Ct. Repr. 159).
   Opinion by

Mr. Justice Potter,

On November 16, 1892, Matthew Boyd gave a mortgage to Joseph B. Townsend to secure the sum of $13,000 upon a tract of 152 acres and a fraction, situate in Upper Chichester township, Delaware county. On March 30, 1894, a writ of scire facias was issued under this mortgage in the court of common pleas of Delaware county, judgment entered for want of an affidavit of defense, and the mortgaged premises sold under a levari facias to the executors of the mortgagee, and a sheriff’s deed made to them. Notice was given and proceedings instituted by the purchasers to obtain possession of the mortgaged premises; but Matthew M. Boyd, a son of the mortgagor, who was then in possession, made affidavit that he did not hold under Matthew Boyd, defendant in the judgment on the mortgage, but in his own right; and he gave his recognizance to appear at court to plead to a declaration in ejectment, etc. The present action was the proceeding in court, which was in effect an ejectment, with the mortgagees and purchasers at the sheriff’s sale as plaintiffs, and the claimant as defendant.

Upon the trial the plaintiffs offered in evidence the record of partition proceedings in the estate of Erasmus Morton, deceased, commenced October-29,1828, whereby a lot of ground, including part of the -premises here in dispute, was awarded to Aaron Morton. This was followed by other .conveyances, all treating the title as a fee simple, which finally assumed to vest it as such in Matthew Boyd, on March 25,1858. The remaining portion of the premises in dispute was- traced from the record of partition proceedings in the estate of Nehemiah Broomall, deceased, begun on November 28,1831, down through a chain, always treating the title as a fee, and assuming to vest it as such in Matthew Boyd, on March 21, 1865. Plaintiff offered in evidence the record of the mortgage of Matthew Boyd to Joseph B. Townsend, dated November 16, 1892, for $13,000, which was the basis of the proceedings out of which this controversy arises, together with the record of the foreclosure suit and judgment and the sheriff’s deed to plaintiffs.

Plaintiffs then called as a witness John M. Boyd, a son of Matthew Boyd, who testified that his father had resided on the mortgaged premises for a period of fifty-six or fifty-seven years, and during all that time witness never heard of anyone claiming to have .an interest in the farm except his father. Never heard it was leased until 1896 or 1897. His father paid thé taxes on the farm, and he never heard of anyone else paying them. No one else resided on the farm except his father. Plaintiffs also offered the triennial assessments of the property from 1866 to 1895, which were admitted under exception. Their admission is -the subject of the first assignment of error, but they are neither set out in the assignment nor printed in the paper-book. '. Plaintiffs also offered two satisfied mortgages, given by Matthew Boyd, which were admitted in evidence, subject to exception. The admission of these mortgages is the subject of the second assignment, but they are not set out.

In none of the papers offered in evidence by plaintiffs was there any reference to a lease, and in all of them the estate allotted, conveyed or mortgaged was assumed to be a fee. Defendant offered in evidence a lease, dated September 5,1681, from William Penn to William Withers for 500 acres of ground, and a release of same dated September 6, 1681, reserving a quit rent of one shilling for every 100 acres. Also a discharge of accrued rent, dated July 6, 1681. Also a lease for the same tract of 500 acres from William Withers to Thomas Withers, dated January 22,1682, lor a term of 2,000 years atan annual rental of “ one pepper corne at or upon the feast of St. Michaell the Archangoll, if the same be lawfully demanded, and also paying and discharging the aforesaid Chiefe or Quit Rent of one shilling yearly.” This was followed by various conveyances, wills and mortgages of this tract and portions of it, in most of which the grant was for the rest of the term of 2,000 years under the above lease. This chain of title to the leasehold estate extended down to the titles of Erasmus Morton and Nehemiah Broomall, but when their estates were partitioned in 1823 and 1831 it was assumed in the proceedings that each owned a fee in the land.

Defendant also showed that Matthew Boyd, Jr., the defendant here and Martha J. Boyd, during the pendency of the foreclosure proceedings, entered judgments against Matthew Boyd and issued executions under which the sheriff of Delaware county levied upon the residue of the term of 2,000 years given under the lease of William Withers to Thomas Withers, and sold and conveyed the same to the defendant. Defendant then called one of his counsel who was a conveyancer, who testified that he had examined the title to the land in controversy, and that it was all included in the 500 acres covered by the Withers lease.

Under this testimony the court refused to give binding instructions for either plaintiffs or defendant, and submitted to the jury three questions: (1) Whether the property here in question was within the tract of land leased in 1682 by William Withers to Thomas Withers; (2) whether there had been a grant or extinguishment of the landlord’s interest in favor of the predecessors in title, of Matthew Boyd; (3) whether there had been such adverse, hostile and exclusive possession, as to bar the setting up of the landlord’s title by the defendant. The jury found for the plaintiffs, in a general verdict, and there is nothing upon the record to show upon which of the questions submitted, the verdict was based.

The title of Matthew Boyd, the mortgagor, to the mortgaged premises was, as we have seen, traced directly back to two proceedings in partition, in the orphans’ court of Delaware. county. One in the estate of Erasmus Morton in 1823, and the other in the estate of Nehemiah Broomall in 1831. It was averred in the petitions for the inquests in these proceedings that each intestate died “ seized in his demesne as of fee ” of the land described, and the estates dealt with are throughout treated as freehold estates, and referred to as real estate and as that alone. The deed made by the administrators of Nehemiah Broomall to Robert Boyd, in pursuance of the sale under the partition proceedings, expressly undertakes to convey the fee. Aaron Morton, who took by allotment, and Robert Boyd, who took by deed, under the respective partitions, took “fee simple estates,” or else they took nothing. The .unexpired term of the Withers lease was personal property, and not susceptible of partition. The partition proceedings show no reference to any lease, and there was no apparent intention to deal in any way with a lease, and if there had been any such purpose, there was no jurisdiction in the orphans’ court to make partition of personalty.

A leasehold interest is not real estate, but merely a chattel real, which is personal property : Dalzell v. Lynch, 4 W. & S. 255; Williams v. Downing, 18 Pa. 60; Kile v. Giebner, 114 Pa. 381; Sterling v. Com., 2 Grant, 162; Wells v. Becker, 29 Pa. Superior Ct. 174.

In Bismark B. & L. Assn. v. Bolster, 92 Pa. 123, Mr. Justice Trunkey said (p. 129): “ A long term of years of very great value is not such an interestin land as is subject to the lien of a judgment; it is a chattel, subject to seizure and sale by a constable on an execution issued by a justice of the peace.” In Brown v. Beecher, 120 Pa. 590, Mr. Justice Clark said (p. 603): “But although the writing'of February 3, 1882, is a lease, it conveyed to Marsh an interest in the land, a chattel interest, however; the lease was a chattel real but none the less a chattel.”

If these predecessors of Matthew Boyd took estates in fee under the partition proceedings, then he also possessed the fee. But even if the partitions were void, the holdings of the parties were adverse to the rights of anyone claiming under the lease. During a period of over sixty years, all the wills, deeds and mortgages in the chain of title assumed to pass the fee and made no reference to any leasehold interest. For over thirty years prior to giving the mortgage, Matthew Boyd was in sole and undisputed possession of the entire tract, paying taxes thereon and exercising all the rights of an owner. This was shown by the record evidence and by the testimony of the witness John M. Boyd, his son.

We can find no evidence that Matthew Boyd, or any predecessor in title since the partition proceedings, ever acknowledged the title of another to the land, but on the contrary they all actually claimed the title in fee simple, in themselves. The genera] principle that a tenant is estopped from denying his landlord’s title is of course unquestioned. But in the present case Matthew Boyd, and his predecessors in title, took possession under a proceeding of record, in which the title was openly and avowedly claimed as a fee simple, and in absolute defiance of the claim of anyone in opposition thereto. And there is not a trace of any claim being made by anyone as landlord during a period of more than sixty years. The parties who took possession under the partition proceedings were fully justified in supposing that they were taking possession in fee. “ Where one enters without knowledge of the tenancy, and irrespective of it, in the assertion of a title on its face adverse to the lessor, though derived, as here, from the tenant, his possession will be hostile, if unequivocal acts and declarations manifest an intention to hold in despite of all others. ... Of the facts that have been recognized as indicative of hostile intent, none are perhaps more decisive than the exhibition of a paper title, independent of that residing in the original owner, by color of which the party justifies his entry : ” Dikeman v. Parrish, 6 Pa. 210 (225).

We can see no evidence to sustain the claim that the relation of landlord and tenant ever existed between Matthew Boyd and the representatives of the lessor in the ancient lease which is here invoked to defeat his claim to a freehold estate. The defendant got more than he was entitled to, when the question of adverse possession was submitted to the jury. Under all the testimony, the court below might well have held the evidence of adverse possession to be conclusive.

Equally persuasive are the circumstances in raising a presumption of a grant or extinguishment of the landlord’s reversion prior to the partition proceedings in 1823 and 1831. After a great lapse of time and a series of circumstances disclosing the enjoyment of an unchallenged title during such period, the courts will presume whatever grant may be necessary to quiet the title. It is not sufficient for a stranger to rest upon an ancient outstanding title. In Jackson v. Hudson, 3 Johnson, 375, Chancellor Kent said: “If- a defendant sets up an outstanding title existing in a stranger, it must be a present subsisting title; it must-be one that is living and operating, otherwise the presumption will be that it has become extinguished.” This language, was cited with approval by Chief Justice Gibson in. Hasting v. Wagner, 7 W. & S. 215, where he said: “ These presumptions conduce to repose, and there is a growing tendency to encourage them not only here, but elsewhere. In Jackson v. Hudson (3 Johns. Rep. 375), the Supreme Court of New York were of opinion that to constitute a defense in ejectment an outstanding title in a third person must be a present and operative one, else it will be presumed to have been extinguished only by a conveyance, and to whom ? Not to the defendant who does not pretend to claim under it, but to the plaintiff who has claimed the tract for thirty years and acted as the owner of it.” The same chief justice in Taylor v. Douherty, 1 W. & S. 324 said, in referring to the case then before him: “We have the expenditure of money, not in a single contested act of ownership, but in acts repeated and persisted in for more than thirty years, as regards the ownership of the warrant, and without any adverse claim to it whatever. On every principle of authority and reason, this was sufficient not only to be left to the jury, but, in the absence of conflicting evidence, to command a verdict. The execution of a deed is presumed from possession in conformity to it for thirty years; and why the entire existence of a deed should not be presumed from acts of ownership for the same period, which are equivalent to possession, it would not be easy to determine.” Many other cases to the same effect might be cited in support of this principle, such as Carter v. Tinicum Fishing Co., 77 Pa. 310; Brown v. Day, 78 Pa. 129; Wallace v. Presbyterian Church, 111 Pa. 164; Fletcher v. Fuller, 120 U. S. 534; United States v. Chavez, 175 U. S. 509. In the present case, under all these authorities, the evidence was, in our judgment, amply sufficient to sustain the presumption of a grant.

But in any aspect of the case, the mortgagor cannot set up as a defense to the mortgage, that he had no title to the premises: Penna. Company v. Beaumont, 190 Pa. 101; Faucett v. Harris, 185 Pa. 164.

When the defendant here purchased the interest of Matthew Boyd in the unexpired lease to Thomas Withers, he became the owner of only such interest and rights as the judgment debtor possessed. The defendant had full notice from the record that his father was in possession under a chain of title which purported to vest in him a fee simple estate, and he was also aware that his father had held himself out as the owner of the fee by mortgaging it as such, not only to the present mortgagee, but to others. The mortgage under which claim of title is made by the present plaintiffs was on record years before the defendant concocted his scheme and obtained his judgments, and made his purchase at sheriff’s sale. As he is a son of Matthew Boyd, he was presumably familiar with the fact of his father’s long and exclusive possession of the land in controversy. We see no reason for allowing to the defendant any higher rights than those possessed by his father. If the father should be estopped from setting up his want of title against his own mortgage, why should not the son, who claims through the father, be also estopped ?

The evidence of title upon the part of plaintiffs was in accordance with the abstract filed. Possession under that title was also shown. If plaintiffs’ evidence had stood alone, it would have been sufficient. The alleged title under the prior lease was set up by the defendant, and the claim of possession adverse to the lease was made, and the presumption of a grant in extinguishment of the lease was set up in rebuttal of defendant’s case. We do not see that this constituted any variance.

The assignments of error are all dismissed and the judgment is affirmed.


author: Per Curiam,

text:
    Vito, Appellant, v. West Chester, Kennett & Wilmington Electric Railway Company.

      Negligence — -Explosion—Railroads—-Fellow servant — Nonsuit.
    A workman, engaged in excavating the roadbed of a railway, who was injured by an explosion of dynamite, cannot recover from the railroad company employing him, where the accident was caused by the negligence of a foreman or boss, who at the time of the accident was helping the plaintiff in lighting the fuses.
    Submitted Feb. 11, 1907.
    Appeal, No. 219, Jan. T., 1906, by plaintiff, from order of O. P. Chester Co., Aug. T., 1905, No. 20, refusing to take off nonsuit in case of Felice Vito v. West Chester, Kennett & Wilmington Electric Railway Company.-
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Hemphill, P. J.
    At the trial it appeared that at the time of the accident the plaintiff was engaged in excavating the roadbed of defendants’ railway. While so engaged he was injured by an explosion of dynamite. The testimony showed that the accident was caused by the negligent act of one Big Mike, in prematurely lighting a short fuse.
    The court entered a nonsuit, saying: “ I cannot see that there is any liability here, on the part of the defendant, for this accident in any way. If anybody was responsible for it other than the plaintiff himself it was Big Mike, who was not a vice principal, nor a principal. At most he was foreman or boss, as he was called, but in this accident he was a coemployee at the time the accident happened, for which the company would not be liable. We therefore direct a nonsuit.”

      Error assigned was refusal to take off nonsuit.

      W. 8. Harris, for appellant.
    No paper-book filed for appellee.

      April 1, 1907:
   Per Curiam,

Judgment affirmed on the opinion of the learned judge below on entering the nonsuit.


text:
    Presbyterian Church v. Philadelphia, Bristol & Trenton Street Railway Company, Appellant.

      Change of venue — Local prejudice — Intensity of prejudice — ■Question for judge.

    An application for a change of venue under paragraph five of section one of the Act of March 30, 1875, P. L. 35, on the ground that “a large number of inhabitants of the county in which the cause is pending have an interest in the question involved therein, adverse to the applicant ” raises a question of fact for the decision of the judge.
    What is a large number of inhabitants is a relative question depending on the circumstances. A few hundred might be a large number in some communities while as many thousand might not be in others. So in regard to the interest which is averred to be adverse to the petitioner in the application. Its intensity, its particular or general character, its diffusion throughout the county or confinement to one or more localities, are all elements bearing on its reaching the requirements of the statute. All of them, both as to number and interest, are addressed to the judicial discretion of the judge.
    Argued Feb. 12, 1907.
    Appeal, No. 300, Jan. T., 1906, by defendant, from order of C. P. Bucks Co., Sept. T., 1905, No. 14, refusing change of venue in ease of The Presbyterian Church at Bristol in the County of Bucks v. Philadelphia, Bristol & Trenton Street Railway Company.
    Before Mitchell, C. J., Pell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Application for change of venue. Before Stout, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was the refusal of the application.

      George Quintard Horwitz, with him Howard I. James and Layton M. Sohoch, for appellant.

      April 1, 1907:
    Yerl&es, Boss do Boss and John Q, Stuekert, for appellee, were not heard.
   Per Curiam,

An application for a change of venue under paragraph five of section one of the Act of March 30, 1875, P. L. 35, on the ground that “ a large number of inhabitants of the county in which the cause is pending have an interest in the question involved therein, adverse to the applicant,” raises a question of fact for the decision of the judge: Everson v. Sun Co., 215 Pa. 231.

What is a large number of inhabitants is a relative question depending on the circumstances. A few hundred might be a large number in some communities while as many thousands might not be in others. So in regard to the interest which is averred to be adverse to the petitioner in the application. Its intensity, its particular or general character, its diffusion throughout the county or confinement to one or more localities, are all elements bearing on its reaching the requirements of the statute. All of them, both as to number and interest, are addressed to the judicial discretion of the judge.

In the present case the learned judge below went fully and carefully into the inquiry. It would not be desirable to encumber the report with the details, but the result may be summed up substantially in his finding that the interest in the matter in its widest aspect was confined to a portion of the borough of Bristol, and the population of the borough is less than one-tenth that of the county. He was, therefore, “ quite satisfied that there will be no difficulty in obtaining a disinterested and impartial jury, jurors who have never even heard of the case.” With his local knowledge of the places and the people, the judge’s opinion is much more likely to be correct than ours could be, and we certainly have not been shown any reason to interfere with it.

Order affirmed.


text:
    Peterson, Appellant, v. Philadelphia, Baltimore & Washington Railroad Company.

      Negligence — Railroads—Master and servant — Risk of employment— Nonsuit — Fellow servant — Vice principal.

    A man employed on a repair train of a railroad assumes the risks of his employment involved in the stopping of the train at irregular times and at places which are without the facilities expected at regular stations, and he also assumes the corresponding duty of special care in so doing.
    The boss or foreman of a repair train of a railroad company is not a vice principal.
    Even if the boss or foreman of a repair train should be regarded as vice principal, he is entitled to assume when he gives the signal to start a train, that the engineer will do so in a proper manner.
    Argued Feb. 12, 1907.
    Appeal, No. 305, Jan. T., 1906, by plaintiff, from order of C. P. Del. Co., June T., 1905, No. 150, refusing to take off nonsuit in case of John R. Peterson v. Philadelphia, Baltimore & Washington Railroad Company.
    Before Mitchell, C. J., Fell, Mesteezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Johnson, P. J.
    Plaintiff was employed on a repair train unloading telegraph poles. Settle, the boss or foreman of the train, gave a signal to the engineer to start it. The engineer in starting the train did so in such a manner that the plaintiff was thrown and injured.
    The court entered a compulsory nonsuit, which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      A. B. Geary, with him Albert l)%Mon MaeDade, for appellant.

      J. B. Hannwm, for appellee, was not heard.

      April 1, 1907:
   Per Curiam,

The very much over-invoked principle of the duty of employers to provide a safe place for employees to work in has no application to this case. Some occupations involve risks and dangers that are inherent, and an employer is not an insurer against these. The appellant ivas employed on a repair train, and the very nature of his employment involved the risks of stopping at irregular times and places, getting on and off without the facilities expected at regular stations and the corresponding duty of special care in so doing. There was nothing in the case to, show that the place furnished plaintiff to work in was not as safe as the nature of the work permitted.

The “ boss ” or foreman was not a vice principal, but, even if he had been, he was entitled to assume, when he gave the signal to start the train, that the engineer would do so in the proper manner. The case is squarely within Cunningham v. R. R. Co., ante, p. 97, opinion filed at the present term.

Judgment affirmed.


text:
    City of Chester v. Baltimore & Ohio Railroad Company, Appellant.

      Railroads — Streets—Occupation of streets — Crossings—Elevation of grade.

    A railroad company has no power to enter upon, occupy, or cross the streets of a municipality without the consent of the municipality.
    After a railroad has once been constructed, in a form and manner approved by the municipal authorities, before any material change can be made in the construction of the road, the municipal consent must be obtained for the desired change. This rule applies to the elevation of grades at the crossings of streets.
    Argued Feb. 13, 1907.
    Appeal, No. 4, Jan. T., 1907, by defendant, from decree of C. P. Del. Co., June T., 1906, No. 266, granting preliminary injunction in case of City of Chester v. Baltimore & Ohio Railroad Company and the Baltimore & Philadelphia Railroad Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.

      April 1, 1907:
    Motion to continue preliminary injunction.
    Johnson, P. J., found the facts to be as follows:
    The plaintiff is a city of the third class. The defendant is a railroad company. Its line runs through the city of Chester, crossing the streets at grade, except Ridley ; among them are Potter, Walnut, Chestnut, Fourteenth street and Melrose avenue.
    Potter is an opened and paved street; Walnut is an opened and paved street; Chesnut is an opened street not paved; Ridley is not an opened street; Fourteenth street is an opened and paved street; Melrose avenue is an opened street not paved.
    The defendant in pursuance of a general plan began the elevation of its tracks at the crossings of the above-named streets, on some of them above the official grade and on some above the existing physical grade, and in such way as necessitated a change in all the street grades, except Ridley, from a few inches to three or four feet, respectively.
    To prevent this the city filed the present bill.
    A preliminary injunction was granted restraining the defendant from elevating its tracks at all the above-named streets, except Ridley.
    The court entered a decree continuing the preliminary injunction.

      Error assigned was the decree of the court.

      W. B. Broomall, for appellants, cited:
    Cleveland & Pittsburg R. R. Co. v. Speer, 56 Pa. 325; Groff v. Turnpike Co., 144 Pa. 150; South Waverly Borough’s App., 11 Atl. Repr. 245; Williamsport, etc., R. R Co. v. Supervisors, 4 Pa. C. C. Rep. 588; Com. v. Erie, etc., R. R. Co. 27 Pa. 339.

      A. A. Cochran, for appellee, cited:
    South Chester Boro. v. R. R. Co., 5 Del. County Rep. 114; Duncan v. Penna. R. R. Co., 94 Pa. 435; McAboy’s Appeal, 107 Pa. 548; Phila. v. P. & R. R. Co., 7 Pa. C. C. Rep. 390.
   Opinion by

Mr. Justice Potter,

The appellant here complains of the court below, that it has, by means of a preliminary injunction, prevented the defendant company from elevating its tracks at the crossings of several streets without the consent of the municipal authorities of the city of Chester. The action of the court below in this matter was fully justified by the principles laid down in Pittsburg v. Pittsburg, etc., Railroad Company, 205 Pa. 13, holding that in this commonwealth, a railroad company has no power to enter upon, occupy, or cross the streets of a municipality without the consent of the municipality. If a railroad cannot be originally constructed upon or across a city street without municipal consent, it necessarily follows that, after it has once been constructed, in a form and manner approved by the municipal authorities, before any material change can be made in the construction of the road, the municipal consent must be obtained for the desired change.

An elevation of the grade would certainly be a material change. The conclusion that municipal consent must be obtained before making any such change is not only reasonable in itself, but it has legislative sanction. The Act of May 31, 1887, P. L. 275, provides that railroad companies whose route extends through or into any city of this commonwealth, may elevate or depress their tracks within the limits of such city, provided that the consent of said city through councils, to such elevation or depression, be first had or obtained. There is no merit in the contention of appellant.

The assignment of error is overruled, and this appeal is dismissed at the cost of appellant.


text:
    Heblich v. Slater, Appellant.

      Attorneys at law — Compensation—Evidence.
    In an action by an attorney at law to recover for services rendered, evidence is inadmissible of an amount paid to another attorney who rendered service in the same case. Not only may the nature of the services differ, but the professional ability and standing of the two attorneys may not be the same. What may be a reasonable fee for one, may be wholly inadequate for another.
    In a suit by an attorney at law to recoyer compensation for professional services, the magnitude of the interests involved, and the responsibility assumed, are properly to be taken into consideration in fixing compensation. Evidence to show the nature and importance of the controversy in which the services were rendered, what results depended upon it in other matters, and how other matters affected it, and increased its gravity, is proper upon the question of the value of the services.
    Argued Feb. 18, 1907.
    Appeal, No. 359, Jan. T., 1906, by defendant, from judgment of C. P. Schuylkill Co., March T., 1905, No. 212, on verdict for plaintiff in case of Rosa Heblich, Executrix of N. Heblich, deceased, v. Harry P. Slater.
    Before Mitchell, C. J., Fell, Brown, Potter and Stewart, JJ.
    Reversed.
    Assumpsit to recover for professional services as an attorney-at-law. Before Shay, B. J.
    At the trial the court admitted under objection and exception, testimony to the effect that John F. Whalen, Esq., an attorney at law, charged and received a fee of $4,000 in the will contest in which plaintiff’s decedent was engaged as an attorney. [1]
    When A. W. Schalck, a witness for plaintiff, was called he was asked this question:
    “ Q. Ton know the labor performed by Mr. Heblich in the hearings before the register, the hearings in the orphans’ court, and also know the fact that Mr. Whalen was employed to take Mr. Ryon’s place after the case had gotten through the orphans’ court and into the common pleas, and the fact that Mr. Whalen had charge of the paper-book and argued the case in the Supreme Court after Mr. Heblich’s death. Having knowledge of those facts, and knowing that Mr. Whalen charged and received as his compensation $4,000 for the value of his services that he rendered, what would you say the value of the services rendered by Mr. Heblich were ? ”
    Mr. Roads : Objected to as not a proper way of establishing the value of the services of the plaintiff in this ease by Mr. Heblich.
    The Court: Overrule the objection.
    Defendant excepts. Bill sealed. [2]
    “ A. At least $4,000. That is to say, that Mr. ITeblich rendered services continuously for five years, and his services were not limited to the trial of the case in court, but during that time we had various motions, rules, arguments of various kinds, while we were pending in the orphans’ court and while we were pending in the common pleas, which had to be argued and disposed of, and the papers are on the record. Considering not only the days actually spent in the trial of the case, but the amount of labor that was required in the preparation of those papers and of the arguments and all briefs, there was quite a number of them during those five years outside of what the record shows of actual trial and hearings in court. Q. You place a great deal of emphasis on the words, at least. State whether or not you do not consider that would be a small compensation for Mr. Heblich ? A. Moderate.”
    Defendant presented these points :
    2. Evidence of what services were rendered and fees charged by other attorneys employed upon the same side with the plaintiff is irrelevant and incompetent, therefore the jury should disregard all testimony in the case relative to the services rendered or charges made by other counsel in the litigation known as the Slater Will case. Answer : We instruct you, as we have instructed you in our general charge, that we did not admit the testimony of Mr. Whalen’s compensation as a criterion to base the charges upon or as evidence of what Mr. Heblich’s services were worth. We only admitted it as some evidence to be taken by the jury, along with all the other evidence in the case, in arriving at a conclusion of what Mr. Heblich’s services were worth. [4]
    3. The testimony as to the compensation charged by John E. Whalen, Esq., one of the defendant’s counsel in the litigation known as the Slater Will case, is incompetent and immaterial for the purpose of fixing the value of the services of N. Heblich, Esq., the decedent, and the jury should not consider it. Answer: We refer to our answer to the second point for an answer to this. '[5]
    4. Under the evidence in this case Anna S. Slater, the mother of the defendant, Harry P. Slater, and testatrix in, the wills in controversy framed by direction of the orphans’ court, did not die seized of the real estate known as the Centennial Hall and the homestead known as the Slater home, she having conveyed the said real estate to her son, the defendant in this case, by deeds executed, delivered and duly recorded, bearing dates respectively May 9 and July 9, 1894, and, therefore, the title to the said Centennial Hall and homestead was not directly or indirectly involved in the contest concerning said wills. Answer /We say to you in answer to this point, under the evidence in this case Anna S. Slater, the mother of the defendant, Harry P. Slater, and testatrix in the wills in controversy framed by direction of the orphans’ court, did not die seized of the real estate known as the Centennial Hall and the homestead known as the Slater home, she having conveyed the said real estate to her son, the defendant in this case, by deeds executed, delivered and duly recorded, bearing dates respectively May 9 and July 9, 1894, and, therefore, the title to the said Centennial Hall and homestead was not directly involved in the contest concerning said wills, but, as we have explained to you in our general charge, that property was indirectly concerned in this contest. [6]
    April 1, 1907:
    Yerdict and judgment for plaintiff for $3,013.43. Defendant appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions ; (4-6) above instructions, quoting them.

      J. W. Moyer and Geo. M. Roads, for appellant.
    A lawyer may bring suit for his fees, but his cause is to be tried like the causes of other men : Thompson v. Hoyle, 85 Pa. 477; Seybert v. Salem Twp., 22 Pa. Superior Ct. 459; Balsbaugh v. Frazer, 19 Pa. 95.
    This case is ruled by Playford v. Hutchinson, 135 Pa. 426.

      H. O. Bechtel, with him W. L. Kramer, for appellee, cited:
    Thompson v. Boyle, 85 Pa. 477.
   Opinion by

Mr. Justice Potter,

This was an action of assumpsit brought by Rosa Heblich, executrix of N. Heblich, deceased, against Harry P. Slater, to recover for professional services rendered in his lifetime by Mr. Heblich, who was a member of the Schuylkill county bar, to the defendant. There was no dispute as to the employment of Heblich by defendant or the services rendered. The single question tried was the value of the services. Five of the assignments of error raise the question, whether in a suit by an attorney at law to recover for services rendered, evidence is admissible of the amount paid to another attorney, who rendered service in the same case.

The cause in which the services were rendered, for which recovery was sought, was the contest of the will of Mrs. Anna Slater, mother of the defendant, dated May 22, 1894, by which she had devised and bequeathed her entire estate to defendant. Certain beneficiaries under a prior will, dated March 23, 1894, filed a caveat to the will on the ground of want of testamentary capacity by the testatrix, and undue influence. The contest was carried into the orphans’ court where an issue devestavit vel non was awarded; That issue was tried in the common pleas court, resulting in a verdict for the will, and judgment thereon was affirmed by this court: Slater v. Slater, 209 Pa. 194. Mr. Heblich took part in the litigation from the outset until his death, which occurred after the trial, and before the appeal was argued in the Supreme Court. In the early stages of tbelitigation John W. Ryon was associated with him as counsel for defendant. Mr. Ryon died before the issue in the common pleas came to trial, and John F. Whalen was then associated with Heblich in Ryon’s place. Mr. Whalen remained counsel up to to the time of Heblich’s death, and afterwards until the final decision by the Supreme Court. He testified that he charged and received from defendant $4,000 as fees for his services. Other witnesses were permitted to take this fact into consideration in fixing the value of Heblich’s services, and the jury were instructed that they might consider it in arriving at their verdict. We think this evidence should have been excluded. The value of Mr. Heblich’s services was in issue, and not that of the witness. It was apparent that they were not each performing the same class of service. One was largely engaged in preparing the case for trial, in searching for evidence, and in producing it, and the authorities for use during the trial. The other seems to have confined his efforts principally to discharging the duties of what is ordinarily known as a trial lawyer. The services of one seem to have been confined to preparation for and attendance upon the hearings in the lower courts, while the other was responsible for the preparation and conduct of the case also in the appellate court. Not only did the nature of the services rendered seem to differ, but the professional ability and standing of the two men-were not shown to be the same. What would be a reasonable fee for one might be wholly inadequate for the other.

In Playford v. Hutchinson, 135 Pa. 426, this court held that in an action by an attorney at law to recover for professional services, rendered in the preparation and trial of a cause, evidence of what services were rendered, and fees charged by other attorneys employed upon the same side with plaintiff, is irrelevant and incompetent. In that case the testimony was offered to show that the claim was for more than the services were reasonably worth. But if such testimony is inadmissible as against the attorney, it must also be excluded when it is in his favor. The true ground upon which its exclusion is based is that it would raise collateral issues. In Calvert v. Coxe, 1 Gill (Md.), 95, this question arose, and the court held, “that what was paid to or demanded by one attorney was not evidence in the cause. We cannot judicially know the standing of any one member of the bar, or the circumstances under which he was paid, or demanded, a given sum for his services. What is the usual and customary compensation for services of a like kind is admissible testimony, but what was paid to any particular individual, standing per se, is in our opinion inadmissible.” Under the authorities, the professional standing of an attorney seems to be a proper element to be taken into account, as affecting the value of his services. If this be so, how could the amount paid to one attorney be evidence of the value of the services of another ? In certain routine matters, one competent lawyer may serve as well as another. But in other phases of litigation requiring the exercise of keen judgment and delicate perception, there may be no comparison between the relative abilities of two men. It has been held that in an action by an attorney to recover for professional services, it is incompetent to prove the value of- his services in another suit: Hart v. Vidal, 6 Cal. 56. To determine the value of the testimony as to the compensation paid to Mr. Whalen would require a comparison of the nature of the service he rendered, with that bestowed by Mr. Heblich, and their relative professional standing and ability ; and also an inquiry into the reasonableness of the charge made by Mr. Whalen. This would raise collateral matters, and involve issues not concerned in this case.

The first, second, third, fourth and fifth assignments of error are sustained.

Another question is raised by the sixth and seventh assignments. Subsequently to making her will, which was the subject of the litigation, defendant’s mother conveyed to him by deeds dated May 9, and July 9, 1894, certain valuable real estate for a consideration of one dollar and natural love and affection. This fact appeared in evidence, and the court instructed the jury that the property thus conveyed was indirectly concerned in the will contest, which settled all dispute as to its title. In his general charge, the trial judge said: Had the other side won, in all human probability, as testified to by counsel, who represented that side, they would have brought another suit to set aside those deeds that have been offered in evidence, so that indirectly, as a matter of law, the real estate was indirectly involved in this transaction. As you have heard from the testimony in the case, the value of that real estate was anywhere from fifty to seventy thousand dollars.” The question raised by these assignments was whether the court erred in instructing the jury that the title to the property so conveyed was indirectly settled by the trial of the issue d. v. n. and in allowing them to take that fact into consideration in fixing the amount of their verdict.

As a general principle, the magnitude of the interests involved and the responsibility assumed are properly to be taken into consideration in fixing compensation. “ Evidence to show the nature and importance of the controversy in which the services were rendered, what results depended upon it in other matters, and how other matters affected it and increased its gravity, is proper upon the question of the value of the services : ” Weeks on Attorneys at Law (2d ed. 1892), 681.

And yet, in the present case the attack which the counsel for defendants in the will case were called upon to meet does not seem to have been very formidable. It can hardly be said to have been at any time a doubtful case. As this court said before: “ The burden of appellant’s contest against the will was that it was procured by undue influence, and a number of matters were presented in evidence which might have tended to corroborate the inference had there been any basis of fact to corroborate. But there was not a scintilla of evidence that tended directly and explicitly to establish the fundamental fact: ” Slater v. Slater, 209 Pa. 194.

It is possible that the decision of the issue on the will, in favor of defendant, prevented additional litigation, and that aspect might perhaps be presented to the jury as something to be considered in fixing the value of the service. But if this was done, the jury should at the same time have been cautioned against attaching much weight to this feature because, as the result showed, there never was any material fact upon •which to base the attack made upon the will. Defending a practically impregnable position is not so difficult as the leading of a forlorn hope. The burden in the litigation concerned was decidedly upon the other side, who sought to invalidate the will. The attack had so little apparent justification that the suggestion that the title to valuable real estate was indirectly involved in this case, was of doubtful propriety.

We do not feel, however, that the qualification of defendant’s fourth point for charge, or the answer to plaintiff’s fifth point, presents sufficient cause for reversal. But by reason of the errors set forth in the first, second, third, fourth and fifth specifications, the judgment is reversed with a venire facias de novo.