author: Peb Cubiam,

text:
    Leitzel, Appellant v. Harrisburg Traction Company.

      Negligence—Street railways—Infants suddenly stepping in front of car— Nonsuit.

    A street railway company cannot be held liable for personal injuries to a boy nine years old, where it appears that immediately prior to the accident the boy was walking in the roadbed of a street behind a wagon, that he stepped suddenly from the road on to the track and was immediately struck by a car which was moving in the same direction at a moderate rate of speed with its gong sounding.
    Argued May 23, 1905.
    Appeals, Nos. 10 and 11, May T., 1905, by plaintiff, from order of C. P. Dauphin Co., June T., 1908, No. 365, refusing to take off nonsuit in case of Raymond Harrison Leitzel by bis next friend and father, William H. Leitzel, and William H. Leitzel v. Harrisburg Traction’ Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries to a boy nine years old. Before Kunkel, J.
    On a motion to take off nonsuit, Kunkel, J., filed the following opinion :
    The plaintiff, Raymond H. Leitzel, a boy nine years of age, and a companion about twelve years of age, were following after a loaded wagon drawn by a team of four horses on Derry street just outside the limits of the city of Harrisburg. The wagon and the boys were going in the direction of the city and the defendant’s car was moving up grade in the same direction. The driveway was rough, having been shortly before filled up with crushed stones, was about seventeen feet wide, and ran along and parallel with defendant’s tracks. The wagon was visible to the motorman on the car for a distance of 1,200 or I, 300 feet from the point where the accident occurred. The plaintiff’s companion climbed upon the wagon, but was put off by the driver. The plaintiff did not succeed in getting on, and walked after the wagon for some distance about two or three feet from it, pretty close to it. The plaintiff testified in chief that about the time the injury was received he was walking between the wagon and the tracks, there being a space between them about two feet wide. On cross-examination, however, he testified that he was walking right behind the wagon until he stepped out and the car struck him. The other boy testified that he had already gotten off the wagon and that the plaintiff was walking behind him, and went to go across the tracks and stepped in front of the car. The corner of the fender struck him and he fell on the side of the track from which he came. It was also in evidence that the motorman sounded his gong for at least 100 feet before the accident, and that the car was stopped within a few feet of the place where the boy was struck, the front wheel of the car only going over his leg, and the car being stopped before the second wheel of the truck came in contact with him. Upon this state of facts we considered it our duty at the trial to withdraw the case from the jury, because, in our judgment, it disclosed no evidence of negligence on the part of the defendant.
    It will be observed that it was not then, nor is it now, contended by the plaintiffs that the defendant was negligent because of the rate of speed at which the car was moving, or because of a failure to sound the gong, or to have the car under control, or because of any other act of omission or commission, but solely because the motorman did not anticipate the sudden movement of the plaintiff upon the track in front of the car, and avoid the collision with him. The plaintiff contends that the case should have been submitted to the jury, and in support of his contention refers us to the cases of Jones v. United Traction Company,. 201 Pa. 344, and Kroesen v. Railway Company, 198 Pa. 26, as ruling this case. An examination of those cases will show a marked and essential difference between them and the case at bar. The former case was that of a very young child, two years old, wandering about and upon the tracks of the defendant, and because she was wandering and therefore likely to turn one way or the other, all of which was apparent to the motorman in time to avoid collision with her, his failure to anticipate that she would wander in front of his car and thus avoid the collision was held evidence of negligence sufficient to go to the jury. In the latter case a child 'four years of age was crossing the track. She had already crossed and was about to recross. She was in a state of alarm and confusion, standing in the middle of the track, having walked there, a distance of twelve feet, while the car, when she started to recross, was 120 feet away. Had the motorman looked ahead he would have seen the child standing in the middle of the track, confused and alarmed, and because of her state of alarm unable to avoid the car. The case was held to be for the jury. In the one case there was presented to the motorman a child wandering upon the track and likely to move in front of the car, in the other case a child standing in the middle of the track, unable, by reason.of her alarm and confusion, to move out of danger. The negligence in both those cases consisted either in not seeing the situation of the child, or, if seeing it, in entirely ignoring it. The sit-nations presented in them were quite different from that which presented itself to the motorman in the present case. Here the boy was following the wagon on the roadway, with nothing to indicate that he would suddenly turn upon the track, and in this respect especially is the case distinguishable from that of Jones v. United Traction Company, 201 Pa. 344, in which there was everything to suggest the likelihood of the child getting in front of the car. The plaintiff was following after the wagon close to the track. The car was proceeding within the control of the motorman and at a very slow rate of speed, at the same time signaling its approach. The motorman could see the. wagon and the boys following it, and for that reason evidently he was moving towards them and the team slowly and sounding his gong. What was there in the situation before him to suggest to him or require him to anticipate that the plaintiff, who was intent upon following the wagon, so far as the motorman could see, just as the car reached him, would step suddenly to the side upon the track in front of it ? There is nothing in the evidence, that we can discover. In what, then, did the motorman fail? Was it his duty to refi’ain from passing the boys and the wagon? Was it his duty to follow behind them until the wagon or the boys left the street? Was it his duty to stop the car and chase the boys away from behind the wagon before he proceeded past it? If such was not his duty, of what act of negligence was he guilty? What act of omission or commission has he been guilty of which would make him blamable for the unfortunate injury to the boy? He sounded - his gong. He approached the boys and the wagon with the car under his control and at a very slow rate of speed, and just as he reached them the plaintiff stepped in front of the car and was injured. It is not the case of running upon him while in the space between the tracks and the wagon, so that he was caught there and because of the narrow way was struck by the fender, for the evidence shows that he stepped upon the tracks. His collision with the car was due to his sudden movement towards and upon the track. It is the duty of the plaintiff to show that his injury was due to some act of negligence on the part of the defendant. • This, as we view the evidence he has not done.

      Wé tliink the case comes within the class of cases where a child suddenly and unexpectedly runs or steps in front of a moving car and gives rise to an imminent danger against which there is no opportunity to guard, as exemplified in the following cases : Chilton v. Central Traction Co., 152 Pa. 425; Funk v. Electric Traction Co.,. 175 Pa. 559 ; Kline v. Electric Traction Co., 181 Pa. 276 ; Pletcher v. Scranton Traction Co., 185 Pa. 147; Gould v. Union Traction Co., 190 Pa. 198; Miller v. Union Traction Co., 198 Pa. 689.
    Upon a careful review of the evidence submitted by the plaintiff we are of the opinion that it was not sufficient to justify the jury in finding that the defendant was negligent, and that therefore the case was properly withdrawn from their consideration.
    The motion to take off the nonsuit is overruled.

      JError assigned was order refusing to take off nonsuit.

      John G. Gilbert, with him Charles B. McConlcey, for appellants.
    The appellants contended in the court belorv and still contend, that this case is ruled by Jones v. Traction Co., 201 Pa. 344, and Kroesen v. New Castle Electric St. Ry. Co., 198 Pa. 26.
    In all that line of authorities where the driver or motorman was held by the court not to be negligent, there was some essential element of negligence lacking, that is present in this motorman’s conduct: Hestonville, etc., R. R. Co. v. Kelley, 102 Pa. 115; Gould v. Traction Co., 190 Pa. 198; Chilton v. Traction Co., 152 Pa. 425; Funk v. Electric Traction Co., 175 Pa. 559; Flanagan v. Pass. Ry. Co., 163 Pa. 102; Fleishman v. Ry. Co., 174 Pa. 510; Kline v. Traction Co., 181 Pa. 276; Miller v. Traction Co., 198 Pa. 639.

      Samuel J. M. MeCarrell and Wolfe $ Bailey, for appellee, were not heard.
    June 22, 1905 :
   Peb Cubiam,

Judgment affirmed on the opinion of the court below.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Motter, Appellant, v. Kennett Township Electric Company.

      Corporations—Light companies—Gas companies—Light, heat and power companies—Consolidation and merger—Act of May 29, 1901, P. L. 349.
    Under the Act of May 29, 1901, P. L. 349, three companies chartered to supply the same territory, one, with gas for light only, the second, with gas for all purposes for which it may be used other than for light, and the third, with light, heat and power by means of electricity, may be legally merged and consolidated.
    Argued May 23, 1905.
    Appeal, No. 9, May T., 1905, by plaintiff, from decree of C. P. Dauphin Co., Equity Docket 1905, No. 347, dismissing bill in equity in case of S. L. Hotter v. Kennett Township Electric Company et al.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The bill stated that the defendants are three corporations created under the act of April 29, 1874, and the supplements thereto, and that by virtue of' letters patent granted to them, the Kennett Gas Light Company is authorized to manufacture and supply to the public, gas for light only in a certain locality ; the Kennett Gas Fuel & Heating Company is authorized to manufacture and supply to the public, in the same locality, gas for all purposes for which gas can be used other. than for light; and that the Kennett Township Electric Company is authorized to supply light, heat and power by means of electricity, to the public in the same territory as the other two companies.
    That the appellees, proceeding in due form of law, entered into an agreement for the merger and consolidation of the three corporations into a new single corporation to be called the Kennett Township Gas & Electric Company, whereupon the plaintiff filed his bill praying that the three corporations, appellees, their respective presidents, secretaries and directors, be restrained from filing, or presenting for filing, or for record, the said agreement, or a copy thereof, in the office of the secretary of the commonwealth, or from accepting letters patent from the commonwealth purporting to erect and create a new corporation, having the rights, privileges and franchises now belonging to the said three companies, or from doing any other acts or things, having for their purpose the consummation of the terms and the accomplishment of the objects of said agreement or merger and consolidation.
    The demurrer of the defendants to the whole bill, admitted the truth of all the facts therein contained, but alleged that they are not sufficient to support the plaintiff’s action, averring that the defendants are authorized and empowered by law to merge and consolidate, and form a single corporation by the name of Kennett Township Gas & Electric Company, possessing all the property, rights, privileges and franchises theretofore belonging to each of the said three corporations, appellees.
    Weiss, P. J., after stating the case filed the following opinion :
    Among the matters set forth in the bill is the fact that by the terms of the agreement entered into by and between the three defendant corporations, it is provided, among other things, that “ the stockholders of the Kennett Township Electric Company shall receive capital stock of the new corporation to the amount of ten thousand ($10,000) dollars, at par, consisting of one hundred (100) shares, which stock shall be divided among the stockholders pro rata in proportion to their respective holdings of stock in the Kennett Township Electric Companjn”
    It is also a fact that the plaintiff is the holder and owner of forty shares of the capital stock of the Kennett Township Electric Company, and that at the meetings held by the stockholders of that company to vote upon the question of the adoption or rejection of the agreement entered into by the directors of each of the three corporations, he voted in favor of the rejection and against the adoption of the agreement to merge and consolidate, though a majority in amount of the stock of the company of which he was a shareholder, together with a majority in amount of the stock of the other two companies, voted for the adoption of the said agreement.
    If there were any complaint that, it is sought by the terms of the agreement to impose upon him stock of the new company intended to be formed, for tbe stock be bolds in the Ken-nett Township Electric Company, an injunction might probably, for this reason, be granted. The Act of May 29, 1901, P. L. 849, in its fifth section makes provision for the payment of the value of the stock of a dissenting holder, but he does not ask an injunction for this reason, and so far as we know has not made application to the proper court for the appointment of appraisers, and it must be assumed that he is not dissatisfied with this feature of the agreement.
    The cause is made to rest on the sole ground that it is unlawful for the three defendant companies to merge and consolidate in and with the proposed new company.
    The act of 1901 is an act supplementary to the corporation act of 1874, and provides “for the merger and consolidation of certain corporations.”
    The act of 1874 authorizes the formation of certain corporations, the act of 1901 authorizes a merger and consolidation.
    In its features relating to the method of procedure, the latter act is almost a rescript of the Act of March 24, 1865, P. L. 49, authorizing the consolidation of certain railroad companies.
    It makes it lawful for a corporation organized finder, or accepting the provisions of, the act of 1874, or any of its supplements, to buy and own the capital stock of any other corporation and to merge its corporate rights with and into those of any other corporation, and authorizes the transfer of the property and franchises of either (both) of such companies intending to merge and the investiture of such rights and privileges in the company into which such merger is sought to be made, and thereupon the rights, property, privileges and franchises theretofore vested in each of the existing companies shall become vested in the new corporation.
    ■ The provisions of the first section of the act of 1901, which relates to the purchase and ownership of the capital stock by one from another which may intend to merge, is at variance with the subsequent sections providing for the meetings of the stockholders to vote upon the adoption or rejection of the agreement to merge, if by that is meant the acquisition and ownership of the capital stock by one or another or others before a consolidation can be completed. There would be no stockholders of the selling company to vote for or against the adoption of the agreement to merge at the special meeting required to be called for that purpose.
    It must be taken to signify that the stockholders of the existing companies may agree to accept capital stock of the company to be formed by the merger in payment of the stock held by them in the corporation intending to merge.
    The certificate required by the act of 1874 requires no more, in this behalf, than that the number of shares subscribed by each person shall be designated, together with the number and par value of the shares into which the capital stock is to be divided. The subscriber to stock pays the unpaid part of his stock when the incorporated company issues and delivers it. So he may sell his stock in an existing company intending to merge with another into the merged company, and take stock in the consolidated corporation when the merger is consummated.
    The capital stock of a corporation is owned by the shareholders, of course, and the corporation could not buy or sell the capital stock.
    What may and must be done to effectuate a merger is the execution of a joint agreement by the directors of corporations intending to consolidate, which must contain the matters prescribed by the act, and must be submitted to the stockholders of each company at separate meetings to be called for the consideration of the agreement,, and its adoption or rejection by ballot.
    A vote by a majority in amount of the entire capital stock of the companies intending to merge, and the required certification, authorizes the agreement to be taken as the act of consolidation.
    In this case the gas light company and the gas fuel and heating company and the electric company seek to merge and consolidate. The Act of May 8, 1889, P. L. 136, amends subdivision eleven of section 2, Second class, of the act of 1874, and makes it read “ the manufacturing and supply of gas, or the supply of light, heat and power by means of electricity, or the supply of light, heat or power to the public by any other means.”
    The Kennett Gas Light Company is authorized to manufacture and supply gas for light only; the Kennett Gas Fuel and Heating Company to manufacture and supply gas for all purposes for which gas may be used other than for light; and the Kennett Township Electric Company to supply light, heat- and power by means of electricity to the public. Territorially they are the same. There is thus a gas light company, a gas heating company, for fuel is used to produce heat, and an electric company. The exercise of their separate functions and franchises comprises light, and heat by gas; and light, heat and power by means of electricity, and the language of the amended clause covers the manufacture and supply of gas, or the supply of light, heat or power by means of electricity. The defendant companies and their respective shareholders have manifested their intention in the way pointed out by-law, to conjoin their several rights, privileges and franchises, which are alike in their general features, and authorized to be exercised by the same general law, in one body politic by a different name, but for the same purposes in the same territorial limits, and it does not appear that so doing violates any law or constitutional inhibition.
    On the other hand, there is authority to enter into the proposed agreement of merger and consolidation, and for the formation of a new company thereby, having the powers, privileges and franchises of the corporations intended to be merged.
    Having the right to merge and consolidate and having proceeded in the manner directed bylaw, it follows that the agreement of merger and consolidation, together with the certificate of the secretaries of the companies to the result of the balloting certifjdng the fact, may be filed in the office of the secretary of the commonwealth, and the matter concluded as provided by law without hindrance.
    The relief prayed for in the bill by the complainant is refused and the bill dismissed at his costs..

      Error assigned was the decree of the court dismissing the bill.

      John G. Gilbert, for appellant.
    Corporations have no power to consolidate, unless the power is expressly conferred by their charter, or by the charter of one of them, or by some other statute, and the consolidation must be effected in compliance with the terms of the statute: Clark & Marshall on Private Corps., sec. 347 et seq.
    Equity will enjoin a consolidation, unauthorized for want of the unanimous consent of the stockholders, at the instance of a single dissenting stockholder : Lauman v. Lebanon Valley R. R. Co., 30 Pa. 42.

      John Gf. Johnson, with him Q. 3. Bergner and Charles E. Morgan, for appellees.
    The Act,of May 29, 1901, P. L. 349, authorizes the merger and consolidation of a gas company with an electric light, heat and power company : Conshohocken Gas Light Co., 5 Pa. C. C. Rep. 585.
    June 22, 1905 :
   Per Curiam,

Decree affirmed on the opinion of the court below.


author: Mr. Chief Justice Mitchell,

text:
    Wunderle, Appellant, v. Ellis.

      Mortgage—Landlord and tenant—Subrogation—Tender by tenant of amount of mortgage.

    Where a tenant has covenanted in his lease to pay the interest on an antecedent mortgage, and it appears that the lease has several years to run, and that the mortgaged premises have been so used in connection with other property that a severance would cause great injury, the tenant may, after a suit has been brought on the mortgage when no interest is due, tender the whole amount of the mortgage and demand an assignment thereof.
    Argued May 23, 1905.
    Appeal, No. 12, Jan. T., 1905, by plaintiff, from decree of C. P. No. 4, Phila. Co., June T., 1904, No. 635, refusing a preliminary injunction in case of Philip Wunderle v. David M. Ellis.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Reversed.
    Bill in equity for an injunction and to compel the assignment of a mortgage.
    The bill averred: that plaintiff was tenant of premises 445-47 New Market street, Philadelphia, under a lease dated July 27, 1899, for a term not to exceed eleven years. That the owners of said premises (Trouts by name) had executed a mortgage on said premises, dated December 16, 1895, which had been assigned to defendant (Ellis) March 28,1904, and a writ of scire facias had been issued in common pleas No. 4 of Philadelphia county, of June Term, 1904, No. 635, and on the same day said premises had been conveyed to one Brown.
    That under the terms of said.lease, tenant had the right to pay out of the rents, interest on said mortgage, taxes, etc., and had in fact paid the same, and there was due him from the property about $100, on account of over-payments by him.
    That said premises had been combined with other premises to form a large plant, and were used for the manufacture of candy by the plaintiff.
    That at the time suit was brought on the mortgage no interest was due.
    That the plaintiff had tendered the whole amount of debt, interest aiid costs in said mortgage suit, and requested an assignment of said bond and mortgage, and this was refused.
    That plaintiff is willing and ready to pay all of said debt, interest and costs, and a sale of said premises would be of irreparable damage to him.
    The bill prayed for an injunction and for an assignment of the mortgage.

      John 6r. Johnson, with him Wm. H. Wood and Wm. U. Burnett, for appellant.
    It is submitted that under the circumstances, the tenant is entitled to an assignment of the mortgage upon payment of the whole amount due and costs, that he stands in the position of a surety who is entitled to subrogation and that equity will enforce his rights in restraining execution in the mortgage suit: Hartman v. Quay, 1 Chester Co. Rep., 487; Mosier’s App., 56 Pa. 76; Lyon’s App., 61 Pa. 15; Keech v. Hall, 1 Doug. 21; Hamilton v. Dobbs, 19 N. J. Eq. 227; Averill v. Taylor, 8 N. Y. 44; Bacon v. Bowdoin, 39 Mass. 401; Arnold v. Green, 116 N. Y. 566 (23 N. E. Repr. 1); Pease v. Egan, 131 N. Y. 262 (30 N. E. Repr. 102).

      W. B. Saul, with him B. O. Michenér, for appellee.—
    A tenant for years has absolutely no equity against a mortgagee merely by virtue of the relationship : Dengler v. Kiehner, 13 Pa. 38; Arna’s App., 65 Pa. 72; Ins. Co. v. Roberts, 6 Phila. 516; McDermott v. Burke, 16 Cal. 580; Kerse v. Miller, 169 Mass. 44 (47 N. E. Repr. 504); Holland v. Citizens’ Sav. Bank, 16 R. I. 734 (19 Atl. Repr. 654).
    If there is nothing in the relationship between a mortgagee and a tenant entitling the tenant to an assignment, is there anything in the special relationship between these particular parties entitling the plaintiff to an assignment?
    The only evidence in this case affecting the defendant is the refusal to accept a tender of the debt, interest and costs coupled with the request for an assignment. Is such a refusal evidence of fraud entitling the plaintiff to relief ? The authorities are clear that it is not: Jones on Mortgages, sec. 1086; Chase v. Williams, 74 Mo. 429; Forest Oil Co’s. App., 118 Pa. 138.
    June 22, 1905:
   Opinion by

Mr. Chief Justice Mitchell,

This is a perfectly clear case for the maintenance of the status quo until final hearing and unless the facts shall then be shown to be essentially different from what they now appear, it will be an equally clear case for payment and subrogation.

The whole right of the defendant as holder of the mortgage is to have his money paid him, and his whole claim on the land is to hold it as security for such payment. When he is offered his money his refusal to take it is persuasive evidence that he is not enforcing his legal rights in good faith but is seeking to use them for some ul terior and inequitable purpose. Even if this were not so the general doctrine of subrogation is that where a party can attain all his legal rights in either of two different ways, a court of equity will compel him to take that which will do the least injury to another having a junior interest in the subject-matter, and if necessary will subrogate the latter to the prior rights.

It is conceded “that a junior mortgagee, judgment creditor, or other encumbrancer who pays off a prior encumbrance in order to protect his own interest in the encumbered estate, will as a general rule be subrogated to all the rights of the senior encumbrancer and if necessary for his protection may compel an assignment of the security.” 27 Am. & Eng. Ency. of Law (2d ed.), Subrogation IV, 3, page 243. There is no good reason why the same relief should not be afforded under similar circumstances to a lessee for years, and there is authority for so holding. “ A tenant for years may redeem, although his lease being made after the mortgage, and good against the mortgagor, is not good against the mortgagee. ” 2 Jones on Mortgages: (6 ed.), sec. 1066. And in Hamilton v. Dobbs, 19 N. J. Eq. 227, a case on all fours with the present but not so strong, it was held by Chancellor Zabrislde that a tenant for years who offers to pay off a mortgage debt, has the right to redeem. He has not perhaps strictly the right to demand a written assignment of the mortgage, but stands by redemption in place of the mortgagee, and will be subrogated to his rights against the mortgagor and reversioner. He has the right to have the bond and mortgage delivered to him uncanceled, which in such case, is in equity and may be at law, a complete assignment.

The appellant presents a much stronger prima facie case than these principles require. He not only has a term with several years yet to run, but he shows a use of the land in connection with other land, to which a severance would do great injury, and further under the terms of his lease he had the right to apply the rent to the payment of taxes, interest on the mortgage, etc., and that he had so paid that when suit was brought on the mortgage there was no interest due, and the property was in debt to him for money advanced.

At common law a mortgagee could not be compelled to assign the mortgage on payment, but only to surrender it. In fact, in the absence of a system of record, the surrender of the instrument was the only secure evidence the mortgagor had of payment. Our Act of May 28, 1715, 1 Sm. L. 94, in aid of the mortgagor, provided for compulsory entry of satisfaction by the mortgagee on the record. And so the Act of J une 24,1885, P. L. 157, provides in certain cases for the compulsory assignment of mortgages on tender of the amount due. It is argued that these acts do not cover the case of a lessee or tenant, and therefore that he is without remedy. But these are common-law remedies, and even if it be conceded, which is by no means clear, that ordinary cases must be brought within their terms, it does not follow that equitable remedy should not be afforded when a case is shown to which equitable principles apply. The common law was opposed to assignments of cboses in action, which it regarded as tending to litigiousness and maintenance : 2 Black. Comm. 442. The general recognition and enforcement of' assignments are the growth of modern methods of business, and the development of equity founded on and following such methods : Bispham on Equity, sec. 164 (7th ed. 1905). There is no solid reason why the principle of subrogation that where a party asserting a legal right can be fully secured in it and at the same time the interests of another in the subject-matter can be protected from impending injury, should not be applied in regard to the assignment of a mortgage, and in favor of a lessee, as well as to any other ease to which the principle is applicable.

Decree reversed injunction reinstated and directed to be continued until otherwise ordered after final hearing.


author: Mr. Justice Fell,

text:
    York Haven Water & Power Company’s Appeal.

      Taxation—Waters—Low water mark—Boundary between York and Lam-caster counties—Mansion house—Power company—Act of June 1, 1883, P. L. 51.
    The boundary line between York and Lancaster counties is ordinary low-water mark on the west side of the Susquehanna river. It is.not the lowest line ever reached by the water as the result of an extreme drought.
    The Act of June 1, 1883, P. L. 51, which provides that where county lines divide a tract of seated land, assessment shall be made in the county in which the mansion house is situated, does not apply where a power house to generate electricity is erected on 'a part of a farm adjoining a river. The land so used is severed from the rest of the tract, and is no part of nor appurtenant to the farm.
    Findings of fact by the court below on an~appeal from a tax assessment will not be set aside unless clear error is made to appear.
    Argued May 17, 1905.
    Appeal, No. 121, Jan. T., 1905, by the York Haven Water & Power Company, from decree of C. P. Lancaster Co., Trust Book No. 19, p. 257, dismissing appeal from assessment by county commissioners.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Appeal from tax assessment.

      Hassler, J., filed the following opinion:
    The York Haven Water & Power Company is a corporation organized for the purpose of supplying water and power and of generating electricity by means of water power. It owns a tract of about 400 acres of land in York.county, bounded on the east by the Susquehanna river, on which is erected a mansion house, barn and other farm buildings, and a warehouse wherein is -kept materials used in and about its business. It has erected a crib dam several thousand feet long in the Susquehanna river, south from which runs a retaining wall, which is part of the dam, at the end of which is erected a powerhouse where the said company generates electricity by means of the water power of the river. This power house, with machinery, is admitted by an officer of the company to be worth $500,000, the amount at which it is assessed.
    The dam and most of the retaining wall are in Lancaster county. The county commissioners of Lancaster county and the township authorities of Conoy township claim that the power house and all of the retaining wall are also located in Lancaster county, and the assessor of Conoy township has assessed and returned it as liable for tax in Lancaster county. From this action the York Haven Water & Power Company has taken this appeal.
    It contends that its power plant is not taxable in Lancaster county, but, if taxable at all for township and county purposes, which question is not raised by the appeal, it should be taxed in York county.
    First, because it is erected on part of the 400-acre tract of land, the mansion house on which is located in York county, and, even though the power plant is located across the boundary line in Lancaster county, the whole must be taxed as one tract, and that in the county where the mansion house is located.
    Second, because the power house is located in York county.
    The first contention of the appellant is based on the Act of assembly of June 1, 1888, P. L. 51, sec. 1 of which is as follows : “ The assessors of the several counties within this commonwealth shall, on seated lands, make the assessment in the county in which the mansion house is situate, when county lines divide the tract.” With the exception that this act applies to counties, it is in the exact language of the fifty-ninth section of the Act of July 11, 1842, P. L. 321, which applies to townships. The act of 1842 has received a construction by the Superior Court in the case of Com. v. Wheelock, 13 Pa. Superior Ct. 282, which will assist us in applying the act of 1883 to the present case.
    In that case, Com. v. Wheelock, A was the owner of a tract of land, part of which, on'which was erected the mansion house, was in a township and a small part of which was in a borough. On the part located in the borough was erected a liouse occupied by the owner’s mother and sister, rent free. It Avas decided that the house in the borough was taxable in the borough and not in the township where the mansion house was located, because it was not used as part of the farm. Judge Rice, in delivering the opinion of the court, says (page 287) : “ Possibly this house is subject to assessment in the borough, and upon reflection we are inclined to the opinion that this is the correct view. It appears to be in the exclusive occupancy of the owner’s mother and sister as a dwelling, and it does not appear it is used as part of, or in connection Avith, the farm. If the owner had demised it, reserving a rent, it would seem clear that this would be a severance of it from the rest of the farm, which would make it subject to taxation as a distinct tenement. The fact that the owner’s mother and sister pay no rent, if such be the fact, does not seem to us to affect the question. The controlling fact is that it is in their exclusive occupancy, and is not used in connection with, or as a part of, the farm.”
    When the York Haven Water & Power Company erected its power house on a part of this 400-acre farm, if it is on a part of it, that portion of the farm was severed from the remainder. It was no longer used as a part of, nor in connection with, the farm, but for a separate and independent purpose. That is the controlling fact. It does not matter, therefore, where the mansion house is located, if it is in another county, for it would not, under the terms of the act of 1883, draw the portion of the tract on which the power plant is erected to it for the purpose of taxation.
    We are of the opinion, however, that [the power plant is not erected on the 400-acre farm]. [1] That farm only extends to low-water mark on the Susquehanna river, and we believe the power house is below low-water mark. The location of the mansion house on the 400-acre tract coulcl not .change the place where the power house is to be taxed. The act of 1883 only applies where the tract is divided by county lines, and does not apply to a separate tract such as we have in this case.
    The second contention of the appellant is that the power house is located in York county.
    The boundary line between York and Lancaster counties is fixed by the Act of August 19, 1749, 1 Sm. L. 198, as follows: “ All and singular the lands lying within the province of Pennsylvania aforesaid to the westward of the River Susquehanna . . . . bounded eastward by the said River Susquehanna.” It has been agreed by the parties that low-water mark on the western side of the river marks the boundary line between York and Lancaster counties. This is most favorable to York county, and puts the boundary line as far east as it can possibly be, according to the act of assembly fixing the boundary.: The Supreme Court has held that the boundary line on navL gable rivers, and the Susquehanna river is made such by act of assembly, is at low-water mark: Stover v. Jack, 60 Pa. 339 ; Poor v. McClure, 77 Pa. 214; Freeland v. Pennsylvania Railroad Co., 197 Pa. 529.
    Low-water mark is defined in 2 Farnham on- Waters, 1462, to be ordinary low-water mark, unaffected by drought. That is, the height of the water at ordinary stages of low water. In Stover v. Jack, 60 Pa. 339, Justice Agnew says: “ The defendant alleged it to be an island surrounded by water except at very low stages. The court held that low water, as contra^ distinguished from high water, does not mean the lowest water the stream may exhibit under special and extraordinary circumstances, and the locus in quo is an island if the water of the river flows around it, at its ordinary stage, unaffected by floods and drought. This is assigned for error, and it brings up for our decision what is meant by low-water mark as a terminus or boundary. . . .
    “It is also a well-known fact that in the seasons of extreme low water many of the islands of the principal rivers are not entirely surrounded with water, but may be reached from the shore dry shod. All the circumstances show that to adopt any other rule than ordinary low-water mark, unaffected by drought, as the limit of title, would carry the rights of riparian owners far beyond boundaries, consistent with the interests and policy of the state, and would confer title where, heretofore, none has been supposed to exist. No one has ever thought that an island cut off from the mainland by the stream in ordinary stages of low water could be added to the land of an adjacent proprietor merely because in the very dry season of the year, the stream had almost disappeared and no water flowed over the intervening dry and sandy or pebbly bed.
    “ The doctrine that low-water mark is the extremist verge to which a long drought may reduce the stream would lead to such results. Ordinary high water and ordinary low water, each has its reasonably well-defined marks so nearly certain that there is not much difficulty in ascertaining it. The ordinary rise and fall of the stream usually finds nearly the same limits. But to bound title by a mark which is set by an extraordinary flood or an extreme drought would do injustice and contravene the common understanding of the people. We are of the opinion, therefore, that the plaintiff’s title was bounded by ordinary low-water mark.”
    To the same effect see Wood v. Appal, 63 Pa. 210; Poor v. McClure, 77 Pa. 214 ; Hartley v. Crawford, 81 * Pa. 478.
    The testimony submitted to us on this appeal, considered in the light of the rule, as thus laid down, convinces us that [low-water mark in the Susquehanna river, at the point where the power house of appellant company is located, is to the west of said power house]. [2]
    On the part of Lancaster county, six witnesses have been called to prove the location of low-water mark at the point where the said power house is erected. Five of them testify that a rock called Ring Rock is the low-water mark. The testimony of one of these witnesses is weakened in his cross-examination, but the remaining four testify quite positively on this point. They were all men who are, and have been familiar with the river for from thirty to fifty years, and have crossed it frequently at this point; two, in fact, have been ferrymen, and all know the location of Ring Rock, and of the power house in question. They testify that Ring Rock is the place to which boats were tied, even in times of very low water, and are corroborated by one of tbe witnesses for appellant, who says that even in 1883, when the water reached one of the lowest stages ever known, boats could be tied to this rock if the chain were fifteen or twenty feet long. These witnesses also testify that Ring Rock is from sixty-five to 100 feet west of the power house, and that there is wet and swampy ground to the Avest of the rock. One witness says that in 1888, when the Avater was' more that ordinarily low, the foreman of the stone quarry, at this point, cut a low-water mark in a rock which marks low water about as far west as Ring Rock is located.
    The witnesses also testified that the company owning the paper mill, which was erected here in 1884, filled up the river at or near this point and caused the line of low Avater to recede further out into the river. They also testified that in order to dig foundations for the power house it Avas necessary to use cofferdams to keep the water of the river out. All these witnesses testify quite positively that all of the power plant is below watér mark and in Lancaster county.
    In contradiction of this testimony the appellants have called nine witnesses, some of Avhoin only testify as to the condition of the river at this point during the last few years, or after the paper company had filled up the river as described by the Avitnesses on behalf of Lancaster county. Three of these nine witnesses have lived in the vicinity for many years, namely, John Ohrendorf, Daniel Repinan and Sherman Walker. They-testify that at very low water, namely, in 1883 and in 1888, the water had receded to a point from twelve to fifteen feet east of the power plant, but they cannot say where low Avater mark was in ordinary low water. One other witness testifies that the paper mill company did fill up the creek Avhich flows into the river near this point, but did not fill up the river at the time the mill was erected. Another witness, William J. Childs, an hydraulic engineer, says, by his measurements at the time the power plant was built a year or two ago, low-water mark was east of the power plant. All the witnesses who testify on the subject admit that part of the poAver plant is east of low-water mark. Some of them testify that it was largely built on dry ground. None of the witnesses, however, fix any mark or monument on the land as the Avay in which they fix low-water mark, though several do so, by au imaginary line from the head of Wissler’s Island.
    As marks or monuments on the ground prevail over courses and distances mentioned in a survey, so the testimony of witnesses who fix low-water mark hy a monument or mark in the ground, such as Ring Rock, to which even in times of low water they tied their boats, must prevail over that of witnesses who do not fix it by some such mark or monument. We are led to accept the testimony of the witnesses who fix Ring Rock as low-water mark in preference to the testimony of those witnesses who fix it at twelve or fifteen feet east of the power house, for the additional reason that these latter witnesses fix that point because it was the lowest low-water mark in their observation, and admit that they cannot fix it at ordinary low-water mark. And the higher courts have said that ordinary low-water mark fixes the boundary.
    Nor do we think that the testimony of those witnesses who testify to present conditions, and that the power house was built on dry ground, which is a present condition, can affect the location of low-water mark. We find from the testimony that the paper mill company did fill in the river at this point and caused the water line to recede eastward, though we do not think that the testimony shows that it caused it to recede east of Ring Rock in times of ordinary low water. Any natural changes on the edge of a river may change the line of low water, but such is not the case if the changes are made by artificial causes. If such changes could be made by artificial causes islands, separated from the mainland by a narrow stream, might be changed from one county into another by filling up the channel which separates' them from the mainland : Poor v. McClure, 77' Pa. 214, and Ball v. Slack, 2 Wharton, 508.
    If, however, the act of the York Haven Paper Company, in filling up the river, could change the line of low water then the act of appellant in raising the water of the river to a point some 40Ó feet west of the power house, would fix the line at that point. • The rule would have to work both ways. The dam of appellant begins at or near the middle of the river, and extends diagonally towards the York county side, near which it narrows, and, by the retaining wall, is run down to the power house, at which point it is 400 feet wide. The water is thus raised about twenty-four feet above the surface of the river at this point. Judge Peakson, in the case of O’Connor v. Bigler, 2 Pearson, 219, says, that the surface of the water as raised by the dam became low-water mark. This case was affirmed by the Supreme Court in Bigler v. O’Connor, 2 W. N. C. 180, though the point as to what was low-water mark was not raised on the appeal. We do not think, however, that this case should prevail against the eases we have cited above, which show that artificial causes cannot change the line of low-water mark. We are, therefore, of the opinion that neither the act of the paper mill company, in causing low-water mark to recede eastward, nor the act of the appellant in causing it to extend westward, can change the line of ordinary low water; and we find, as a fact, that [it is located at Ring Rock, a distance of from sixty-five feet to 100 feet west of the power house, and that, consequently, the power house is in Lancaster county]. [3]
    We must, therefore, dismiss the appeal at the cost of appellant. .

      Errors assigned were (1-3) portions of opinions as above, quoting them; (4) in dismissing the appeal.

      W. U. Sensei, for appellant.
    The preponderance of the testimony is to the effect that the “power plant” itself is above “low-water mark” on the western or York county shore of the Susquehanna river.
    In cases of this kind, as in a suit in equity, the Supreme Court, on appeal, is bound to examine the evidence and determine what are the facts, and, if satisfied that facts have been found without proof, or material facts established by the proof have not been found, it follows that there has been plain mistake, for which the finding will be set aside : Worrall’s Appeal, 110 Pa. 349; Cauffman v. Long, 82 Pa. 72.
    Even if the power plant, or the main part of it is physically located inside low-water mark, it is taxable in York county: Nippenose Twp. v. Bastress Twp., 7 W. N. C. 245; Bennethum v. Eckert, 7 W. N. C. 373; Easton v. Lerch, 2 North. 383; Stahl’s Assessment, 1 Lanc. Law Rev. 329; Com. v. Wheelock, 13 Pa. Superior Ct. 282.
    Land lying in different counties, though in separate tracts, divided by a river, will be taxed in the county where the owner resides, if it was conveyed by one deed : People v. Wilson, 125 N. Y. 367 (26 N. E. Repr. 454); Robson v. Du Bose, 79 Ga. 721 (4 S. E. Repr. 329); Udall v. Brooklyn, 19 Johns. 175; Luke v. Brooklyn, 43 Barb. 54; Atlantic Dock Co. v. Brooklyn, 3 Keyes, 444.

      Bernard J. Myers and W. R. Brinton, with them N. F. Mall, for appellee.
    It is well settled under the law of Pennsylvania that the Supreme Court will not reverse the court below on a finding of fact, except for gross and palpable error: Piper’s App., 20 Pa. 67; Baird v. Ford, 152 Pa. 637; Warner v. Hare, 154 Pa. 548.
    York county was erected under and by virtue of an act of the legislature of the colony of Pennsylvania, passed August 19, 1749, 1 Smith’s Laws, 198. This act fixes the boundary of York county, inter alia, as follows, to wit:
    “ That all and singular the lands lying "within the province of Pennsylvania aforesaid to the Westward of the Susquehanna river, Southward and Eastward of South Mountain be erected into a County; and the same hereby is erected into a County named and henceforth to be called York.”
    If a boundary is described as running to the bank, no jurisdiction may be acquired over the water: 2 Farnham on Waters, 1487.
    Our Pennsylvania decisions clearly sustain the position that low-water mark is not “ the lowest kind of low-water mark,” but low-water mark means the ordinary low-water' mark, not affected by drought but the height of the water at ordinary stages of low water: Stover v. Jack, 60 Pa. 339; Poor v. McClure, 77 Pa. 214.
    We submit that it is no answer to the assessment of the power plant and dams in Lancaster county, to say that the company owns a mansion house a half a mile away in York county, even though the lands on the tract do adjoin the the power plant: Com. v. Wheelock, 13 Pa. Superior Ct. 282.

      June 22, 1905:
   Opinion by

Mr. Justice Fell,

The question raised by this appeal is whether the appellant’s power plant should be assessed for taxation in York county or in Lancaster county. The facts that give rise to it are these : The appellant purchased a tract of 400 acres of farm land in York county on which there were a farmhouse, barns and other farm buildings. The eastern boundary of the tract was the Susquehanna river, where it had a frontage of three-fourths of a mile. It constructed crib dams which extend into the liver and a race by which the water is conducted to a power house 278 feet long and forty-nine feet wide. It is agreed that the boundary line between York and Lancaster counties is low-water mark on the western bank of the Susquehanna river. The disputed question of fact is whether the power plant is east or west of this line. All of the witnesses agreed that a part of the plant is east of low-water mark. The court found that the whole of it is east.

The conflict in the testimony arose mainly from the different views of the witnesses as to what should be considered low-water mark, whether the lowest line the water has ever been known to reach or as expressed by some of them “the lowest kind of low-water mark,” or the line of ordinary low water, not the effect of an extreme drought. The learned judge, following the decision in Stover v. Jack, 60 Pa. 389, held that the low-water mark was the line to which the water receded at ordinary states of low water, and ascertained the location of this from the testimony of witnesses who had observed the river for a long period of time and who fixed the line of low-water mark by monuments on the ground. The case was considered and decided on right principles both in determining what was low-water mark and the weight of the evidence. We should not set aside the finding of fact by the court unless convinced of clear error. From a careful review of the testimony we find nothing to lead us to doubt its correctness.

It is, however, contended that if the power plant is located east of the line of York county, it should be assessed in that county as a part of the tract on which the mansion house and other buildings are located. This contention is based on the Act of June 1,1883, P. L. 51, which provides that where county lines divide a tract of seated land, the assessment shall be made in the. county in which the mansion house is situated. The act does not apply to this ease. The appellant was incorporated for the purpose of supplying water and power and of generating electricity by means of water power. By the purchase of the farm it secured valuable water rights and has utilized them by the construction of a dam in the river and a race and power house on its margin. The improvements are valued at 1500,000 and occupy only a few acres at one side of the tract. These acres are practically severed by their use from the rest of the tract and are applied to a new and entirely distinct use wholly unconnected with the use to which the remainder is put. They are not a part-of nor appurtenant to the farm. The 59th section of the Act of July 11, 1842, P. L. 321, which contains a similar provision as to lands divided by borough or township lines, was held not to apply to a house in a borough not used in connection with nor as a part of a farm : Commonwealth v. Wheelock, 13 Pa. Superior Ct. 282.

The order of the court is affirmed at the cost of the appellant.


author: Mb. Justice Fell,

text:
    Weaver, Appellant, v. The Pennsylvania Railroad Company.
    • Negligence—Railroads—Passenger—Getting on train—Contributoi'y negligence.

    In an action against a railroad company to recover damages for personal injuries alleged to have been sustained while getting on a train, where plaintiff’s account of the accident is directly contradicted by the evidence offered by the defendant, the court cannot be convicted of error in saying to the jury that “the care one must take in entering a railroad train must be proportionate to the ordinary risks in such entering, that is, it is the duty of the passenger to use the means provided with reasonable circumspection and care. Where both parties contribute to the accident, it matters not who contributes the more, for the law will not determine which is guilty of the greater fault, but says that in all such cases neither can recoverfrom the other.”
    Argued May 17, 1905.
    Appeal, No. 133, Jan. T., 1905,'by plaintiff, from judgment of C. P. Lancaster Co., June T.; 1902, No. 26, on verdict for defendant in case of Mardula J. Weaver v. Tlie Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Landis, P. J.
    The facts are stated in the charge of the court, the material portion of which is as follows:
    [Where a plaintiff has, by his or her conduct, brought about, or aided in bringing about, the injury, the law calls this contributory negligence. The defendant may be guilty of negligence, and yet, even if this be- so, if the party injured in any respect contributes to the accident, there can be no recovery. Contributory negligence is defined to be the omission, by a passenger, to exercise such a degree of care as the circumstances of the case demand from a person of ordinary prudence, having a proper and reasonable regard for his or her own personal safety. The care one must take in entering a railroad train must be proportionate to the ordinary risks incurred in such entering, that is, it is the duty of the passenger to use the means provided with reasonable circumspection and care. Where both parties contribute to the accident, it matters not who contributes the more, for the law will not determine which is guilty of the greater fault, but says that in all such cases neither can recover from the other. These are the principles of law which govern this case, and you must now enter upon an investigation of the proven facts.] [1]
    The plaintiff, Mardula J. Weaver, is a widow. She is now seventy-four years old, and was seventy-one years old at the time she alleges this accident occurred. On November 26, 1901, she went from Manheim to Salunga, arriving, she says, at the latter place between one and two o’clock in the afternoon. She took dinner with Mrs. Laura McGirl, and they together went to the railroad station to meet the train which arrives at this place (Lancaster) somewhere about four o’clock in the afternoon. Mrs. McGirl carried Mrs. Weaver’s basket. The train, she says, was half an hour late, and they remained in a small train house, there being no ticket office at this place. When the train ai'rived at Salunga, it stopped. She says that’ .while.it was. standing there, she put her left foot upon the lower step, and took hold of the railing of the car with her left hand; that, at this time, one of the train men called out, “ Go ahead,” and waived his hand to the engineer, and the train started, and she was thrown back on to the platform and injured. She says that she has been affected by this injury ever since, and two physicians, called on her behalf, stated that they could see nothing from their examinations except a slight swelling of one of the parts, and made up their diagnoses largely from what Mrs. Weaver told them, but that such an injury causing the effects described is likely to be permanent, after this length of time. Mrs. Weaver, however, admits that she was injured some years ago on the Pennsylvania railroad, but asserts that she had fully recovered before November 26, 1901.
    It has been shown, on the part of the defendant, by Mrs. McGirl, that the plaintiff came to her house about ten o’clock on the morning of November 26, 1901; that Mrs. Weaver stayed for dinner, and she (Mrs. McGirl), in the afternoon, accompanied the plaintiff to the railroad station; that they started early, because Mrs. Weaver complained of pain and she, either in the morning or afternoon, that is, either coming to Mrs. McGirl’s house or going towards the station, had a limp in her walk. Mrs. McGirl says that when the train came, Mrs. Weaver was helped on by the brakeman and conductor, and that she sat down in one of the front seats, and the train moved off. The front brakeman swears that he helped her part way up the steps, and then the conductor took her in charge, and the conductor tells you how he placed her in a seat, and afterwards saw her from the train when it arrived in Lancaster, in safety. The rear brakeman says he saw her get upon the train, and Aaron Kepperling, a passenger, testifies that he got on the smoking-car, which was immediately in front of the car which Mrs. Weaver entered, and that he saw the brakeman and the conductor help her up the steps and into the car. All of these witnesses positively swear that no accident occurred on this day, and that Mrs. Weaver was not injured, as she claims.
    If, then, you believe the story of the plaintiff that she, while using proper care in mounting the steps of this railroad car, was, by reason of its having been started without a sufficient time being given for her to accomplish this object, thrown back upon the railroad platform and injured, then your verdict may be in favor of the plaintiff. [If, on the other hand, you find that she was not injured, that there was no accident, or, if there was, that it was brought about by her-own fault, or that she aided in bringing it about, or that the suffering which she complained of resulted from other causes than those which occurred on November 26, 1901, then your verdict should be in favor of the defendant.] [2] Five witnesses who say they were present testify that the plaintiff met with no accident on this day. The plaintiff alone testifies that- there was. You must disbelieve all of these five witnesses if you believe her.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1, 2) above instructions, quoting them.

      O. E. Montgomery, with him A. H. Powden, for appellant.—■
    It is error on tl\e part of the court to submit a question of fact to the jury without evidence to support it: Dreibilbis v. Esbenshade, 6 Pa. Superior Ct. 182; Switland v. Holgate, 8 Watts, 385; Hannay v. Stewart, 6 Watts, 487; Northern Central Ry. Co. v. Husson, 101 Pa. 1; Paul v. Kunz, 195 Pa. 207; Phila. Traction Co. v. Orbann, 119 Pa. 37; Gas Co. v. Lynch, 118 Pa. 362; Phila., etc., R. R. Co. v. Alvord, 128 Pa. 42; McHugh v. Schlosser, 159 Pa. 480; Braunschweiger v. Waits, 179 Pa. 47; Fullam v. Rose, 181 Pa. 138; Com. v. Swayne, 1 Pa. Superior Ct. 547; Rumsey v. Shaw, 25 Pa. Superior Ct. 386.

      H. M. North, with him H. M. North, Jr., for appellee.
    June 22, 1905 :
   Opinion by

Mb. Justice Fell,

The negligence alleged was that a passenger train was suddenly started while the plaintiff was getting on one of the cars at a station. The assignments of error related to the instruction as to contributory negligence, and it is argued that the only question for decision by the jury was whether an accident had happened and that the instruction submitted to them a question not raised by the testimony. The. plaintiff testified that she was on the station platform when the train arrived, that she took hold of the railing at the end of the car with her left hand and placed her left foot on the lower step ; that while she was in this position the brake man signaled the engineer to start and the sudden jerking of the ear threw her to the platform. The defense, abundantly sustained by the testimony, was that the plaintiff was assisted up the steps by the conductor and was seated in the car when the train started, and that she did not fall nor sustain an injury of any kind.

It is error to submit to a jury a question not involved in the case, but it is never error fully to instruct them as to the essential elements of a plaintiff’s right of recovery. In the instruction complained of the court clearly defined the duty of those in charge of a train to allow passengers ample time to get on and off, and of the duty of passengers to exercise reasonable care; and stated that if the negligence of both contribute to an accident there can be no recovery. The instruction was in effect a statement of the rule that in order to recover a plaintiff must prove negligence on the part of the defendant and present a case clear of negligence on his part. Moreover, while contributory negligence was not made a distinct ground of defense, it might properly have been considered by the jury.

It appeared from the plaintiff’s testimony that she was in the act of going up the steps before the signal to start was given, and the jury might have found that her injury, if there was any, was occasioned by her own failure promptly to get into the car.

The judgment is affirmed.


text:
    Rohrbach, Appellant, v. Sanders.

      Will—Estate in fee simple—Defeasible estate—Tenants in common—Statute of limitations—Trust and trustees.

    Testator who died in 1859, directed as follows: “I give and devise unto my beloved wife and to my son, all my property, both real, personal and mixed to be held for herself and in trust for my said son—provided, however, that if my said wife should again marry then I give and devise the property before mentioned to my son and his heirs forever, and the trust thereby created in favor of my son shall after such marriage be null and void.” The widow did not marry again, and was in possession of the real estate and the enjoyment of it until her death in 1891. In 1880 the son’s interest was sold by the sheriff under a judgment against the son. In Í905, the grantee of the purchaser of the real estate brought an action of ejectment against the committee of the son who had been declared a lunatic. After the death of the widow the real estate remained'either in the possession of the son or of his committee, who exercised all the right of exclusive ownership, collecting the rents and appropriating them to their own use, after paying taxes and making alterations and repairs. Held (1), that the widow took a defeasible fee simple estate in the undivided one-half of the real estate which became an absolute fee simple; (2) that the statute of limitations defeated a recovery of the one-half interest in the son; (3) that a verdict and judgment in favor of the committee of the son should be sustained.
    Open, notorious and uninterrupted possession of the whole by a tenant in common for more than t-wenty-one years, claiming the whole land as his own, and taking the whole profits exclusively to himself is evidence from which a jury may draw the conclusion of an ouster, and an adverse possession.
    Argued May 22, 1905.
    Appeal, No. 13, Jau. T., 1905, by plaintiffs, from judgment of C. P. Northumberland Co., May Term, 1904, No. 316, on verdict for defendants in case of G. E. Rohrbach and W. R. Rohrbach v. W. J. Sanders, committee of Henry v. Simpson, a lunatic.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Ejectment for land in the borough of Sunbury. Before Aitten, J.
    The facts are stated in the opinion of the Supreme Court.
    Defendant presented the following points :
    2. That under the will of Henry Y. Simpson, Sr., the widow, Sarah A. Simpson, took a fee in the undivided one-half of the whole estate, defeasible upon her remarriage. That event not having taken place, upon her death she was, or her estate was, seized of the fee in the undivided one-half of the premises described in the writ of ejectment. That the sheriff’s sale, under the judgment of Daniel Beckley against Henry Y. Simpson, Jr., did not pass the interest of Sarah A. Simpson, but only the interest of Henry Y. Simpson, Jr., which was the undivided one-half, the sale taking place prior to the death of Sarah A. Simpson. Answer : That point is affirmed, and is, I believe, what I have already said to you in my charge. [1]
    When one tenant in common enters on the whole and takes the profits and claims the whole exclusively for twenty-one years, the jury ought to presume an actual ouster though none be proven; and as between tenants in common, a legal presumption of ouster arises in favor of one who has been in the peaceable and exclusive possession of the profits of the land for more than twenty-one years, and the taking of the whole profits exclusively, is evidence from which the jury may draw the conclusion of ouster and adverse possession. Answer: I shall not affirm that in the exact language in which it is drawn. I charge you, however, gentlemen of the jury, that when one tenant in common enters upon the whole and takes the profits and claims the whole exclusively for twenty-one years, the jury may presume an actual ouster, though none be proven, and as between tenants in common, a legal presumption of ouster arises in favor of one who has been in the peaceable and exclusive possession of the profits of the land for more than twenty-one years, and the taking of the whole profits exclusively is evidence from which a jury may draw the conclusion of ouster and adverse possession, and as thus answered, is, I believe, substantially what I have already said. [9]
    Plaintiff presented these points :
    f. Under all the evidence in this case the verdict must be for the plaintiffs. Answer : Refused without reading. [2]
    8. The words, “ provided, however, that if my said wife should again marry, then I give and devise the property before mentioned to my son, Hehry V. Simpson and his heirs forever,” operated as a limitation and not as a condition; and,
    (a), the widow, Sarah Ann Simpson, acquired a life estate under the will, subject to be sooner determined upon her remarriage with,
    (ft), a vested remainder in Henry V. Simpson, the son; and,

      (e), it matters not for the purpose of the disposition of this case whether the widow took an estate for life as to the whole, with vested remainder in Henry, or whether the widow took an estate for life as to the undivided one-half with vested remainder in Henry as to the said undivided one-half, with Henry the owner in fee of the other undivided one-half as an executed trust; the result is the same. Answer : The third point is refused without reading. [3]
    5. The statute of limitations did not begin to run in this case until the death of the hfe tenant, Sarah Ann Simpson, which occurred on December 26, 1891, and the defendant’s plea thereof in bar' of this action will not avail. Answer : Refused without reading. [7]
    6. The possession of Sarah A. Simpson was the possession of the other tenant in common, and the plaintiffs in this suit will not be barred from sustaining this suit by reason of the suit not having been brought within twenty-one years from the time of the sheriff’s sale to J.. B. Reed, but the statute would only run from the time of the death of Sarah A. Simpson, the life tenant. Answer: Refused without reading. [8]
    Verdict and judgment for defendants. Plaintiff appealed.

      JErrors assigned were (1-3, 7-8-9) above instructions, quoting them.

      John F. Schaffer, with him S. P. Wolverton, for appellants.—
    The widow took an estate for life with limitation over to the son: Irvine v. Sibbetts, 26 Pa. 477; Com. v. Stauffer, 10 Pa. 850; Jones v. Jones, L. R. 1 Q. B. Div. 279; Cooper v. Pogue, 92 Pa. 254; Giles v. Little, 104 U. S. 291; Redding v. Rice, 171 Pa. 301; Manderson v. Lukens, 23 Pa. 31; Sager v. Galloway, 113 Pa. 500; McCall v. McCall, 161 Pa. 412.
    The rule is well settled that the possession of land by a tenant for life is not adverse to the remainder-man or reversioner : Stofflit v. Troxell, 8 W. & S. 340; Ege v. Medlar, 82 Pa. 86; Gernet v. Lynn, 31 Pa. 94; Davis v. Dickson, 92 Pa. 365; Crow v. Kightlinger, 25 Pa. 343.

      Creo. B. Beimensngder, with him W. J. Sanders, for appellee.
    Sarah A. Simpson took a fee in the undivided one-half of the whole property defeasible upon her remarriage. That event not taking place she was seized of the fee in the undivided one-half of the premises, and the sheriff’s sale of the interest of Henry V. Simpson, Jr., did not pass the interest of Sarah A. Simpson and onty the interest of Henry V. Simpson, Jr., which was the undivided one-lialf. The sale took place prior to the death of Sarah A. Simpson: Redding v. Rice, 171 Pa. 301.

      The statute of limitation began to run on May 14, 1880, at the acknowledgment and delivery of the sheriff’s deed.
    The taking of the rents, issues and profits of the whole estate is evidence from which the jury may draw the conclusion of ouster and adverse possession and the leasing of the property, receiving the rents, erecting fences and buildings and the cultivation of the land and the payment of taxes is sufficient evidence from which the jury might find that there was an ouster: Law v. Patterson, 1 W. & S. 184; Frederick v. Gray, 10 S. & R. 182; Blackmore v. Gregg, 2 W. & S. 182; Susquehanna, etc., R. R. & Coal Co. v. Quick, 61 Pa. 328.
    June 22, 1905:
   Opinion by

Mb. Justice Fell,

The first question presented by this appeal is what estate Sarah Ann Simpson took under the following clause of her husband’s will: “ I give and devise unto my beloved wife Sarah Ann and to my son Henry V. Simpson, all my property, both real, personal and mixed to be held for herself and in trust for my said son—provided, however, that if my said wife should again marry then I give and devise the property before mentioned to my son Henry V. Simpson and his heirs forever, and the trust thereby created in favor of my son shall after such marriage be null and void.” The testator’s widow did not marry again, and was in possession of the real estate until her death in 1891, thirty-two years after the death of her husband.

At the trial of an action of ejectment brought by the grantees of a purchaser at a sheriff’s sale of the son’s interest, the jury were instructed that Sarah Ann Simpson took a defeasible fee simple estate in the undivided one-half of the real estate, which became an absolute fee simple. This instruction was correct. No intention is disclosed to give a life estate merely and the words used are apt words for the creation of an estate upon condition. There was no limitation over in the event of the widow not remarrying, and an intestacy as to one-half would result in that event if the fee was not in her. The devise was of the property itself. It vested immediately and was in fee, defeasible on the happening of an event which did not happen. In principle the case is not distinguished from Redding v. Rice, 171 Pa. 301.

The second question is whether the statute of limitations defeated a recovery of the one-half interest of the son. The testator died in 1859. The trust as to the son was a dry trust. His whole interest was sold-by the sheriff to the plaintiff’s grantors in 1880, twenty-five years before this action was commenced. During this period of time there was no assertion of title by th¿ plaintiffs or their predecessors in title, and the property was in the exclusive possession first of the widow of the testator until her death in 1891, and then in his son until he was adjudged .a lunatic, and afterwards in his committee, who exercised all the rights of exclusive ownership. They occupied or rented the property, received the rents and profits ■and appropriated them to their own use, paid the taxes, and made alterations and repairs. The court left it to the jury to determine whether these acts were so inconsistent with joint ownership as to give rise to and sustain an inference of ouster. The instruction on the subject was as follows : “ .... when one tenant in common enters upon the whole and takes the profits and claims the whole exclusively for twenty-one years, the jury may presume an actual ouster, though none be proven, and as between tenants in common, a legal presumption of ouster arises in favor of one who has been in the peaceable and exclusive possession of the profits of the land for twenty-one years, and the taking of the whole profits exclusively is evidence from which a jury may draw the conclusion of ouster and adverse possession.”

The possession of one tenant in common is prima facie the possession of his cotenant also and the mere reception of profits, payment of taxes, and making repairs without more will not sustain a claim of ouster or adverse possession : Bolton v. Hamilton, 2 W. & S. 294. The claim of exclusive right may be established by proof that one tenant in common has entered on the whole land and taken possession and occupied the whole, claiming the profits as his own for twenty-one years without acknowledging the claim of his cotenant: Law v. Patterson, 1 W. & S. 184. It was said in Frederick v. Gray, 10 S. & R. 182, that where one tenant in common enters on, and takes the profits of the whole under an "exclusive claim for twenty-one years the jury ought to presume an actual ouster though none be proved. The rule is thus stated in the opinion in Susquehanna, etc., R. R. & Coal Co. v. Quick, 61 Pa. 328. “It is therefore certainly the law that open, notorious and uninterrupted possession of the whole by a tenant in common for more than twenty-one years, claiming the whole land as his own, and taking the whole profits exclusively to himself, is evidence from which a jury may draw the conclusion of an ouster and an adverse possession. The distinction is that it does not afford a legal presumption, which would entitle the court to withdraw the question from the jury, and instruct them that they must infer an ouster and adverse possession, if not successfully rebutted.”

We find no error in the record, and the judgment is affirmed.


text:
    Moore, Appellant, v. City of Lancaster.

      Road law—Change of grade—Mistalce of city surveyor—Right of action— Damages—Effect of transfer of property.

    Where a city regulator or surveyor gives a wrong grade to a property owner and the latter builds according to the grade given to him, and thereafter conveys the property to another, the grantee of the property has no right of action against the city when the natural grade is changed to conform to the legal grade. In such a case if a right of action existed in the original owner against the city such right did not run with the land.
    Reargued May 23, 1905.
    Appeal, No. 202, Jan. T., 1903, by plaintiff, from order of C. P. Lancaster Co., Nov. T., 1900, No. 64, refusing to take off nonsuit in case of Harry H. Moore v. City of Lancaster.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages to land. Before Landis, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was the order refusing to take off nonsuit.

      W. U- Hensel and W. R. Earnish, for appellant.—The
    damages were done and suffered not when the grade was given but when the city made the physical changes : Kershaw v. Philadelphia, 48 Legal Int. 56; Grugan v. Phila., 158 Pa. 337; Phila. v. Wright, 100 Pa. 235.
    The right of recovery begins only when the physical change of grade is made ; the statute of limitations begins to run only then, and the sufferer, then, is alone entitled to recover damages : Tabor Street Case, 29 Pa. C. C. Rep. 214; In re Plan 166, 143 Pa. 414; Norwood Street, 28 Pa. C. C. Rep. 555; O’Connor v. Pittsburg, 18 Pa. 187.

      Edwin M. Gilbert, for appellee,
    cited: Losch’s App., 109 Pa. 72; McFadden v. Johnson, 72 Pa. 335; Warrell v. Railroad Company, 130 Pa. 600; Davis v. Titusville & Oil City Ry. Co., 114 Pa. 308.
    June, 22, 1905:
   Opinion by

Mr. Justice Fell,

This action was to recover damages to real estate caused by the grading of a city street. The main and decisive question is raised by the assignment of error to the refusal of the court to take off a nonsuit. The facts established at the trial or of which offers of proof were made and rejected were these. In 1877 a general plan fixing the lines and grades of the streets of the city of Lancaster was approved. In 1893 the owner of a building lot applied to the city regulator for the grade line. The regulator gave her a line about two feet above the established line, and she built two houses to conform to the fine given her. In 1899 she sold the houses, and in 1900 her grantee conveyed them to the appellant. In the same year the city caused the pavement in front of the houses to be lowered to the grade established in 1877.

It is alleged in the statement of claim that the city unlawfully changed the grade of the street from the grade given to the former owner in 1893, and that because of this change the value of the property has been depreciated. There has been no change of the grade line since it was originally fixed in 1877. The whole difficulty has arisen from the mistake of the regulator in giving an incorrect line to the owner in 1893, and the real ground of complaint is not that the city has cut the street down to the established grade, but that an incorrect line was given to the plaintiff’s predecessor in title, by reason whereof she built the houses now owned by the plaintiff at a greater elevation than she otherwise would have built them. The person injuriously affected by the mistake of the regulator was the owner in 1893, and if she had a right of action against the city for the negligence of its officer the right did not run with the land, and the plaintiff is as much a stranger to it as he would be to a right of recovery against a builder who had negligently built the houses within the' line of the street, or above or below the established grade. The argument that the plaintiff may recover because it is the physical change, and not the establishment of a grade on the official plans that gives a right of action and that damages are not recoverable for the establishment of a grade until the work of grading is begun, is misleading. It is based on the erroneous assumption that as to the plaintiff the city is bound by the grade line given by the regulator to his predecessor in title, and that it is estopped to assert that this line is not the correct line.

The judgment is affirmed.


author: Mr. Justice Brown,

text:
    Talbot, Appellant, v. Sims.

      Negligence — Master and servant — Contributory negligence — Continuance in dangerous employment.

    An employee who continues in an employment, which, by reason of defective machinery or appliances he knows to be dangerous, assumes the risk of any accident that may result therefrom.
    Where a stone mason sees four stones fall in two successive days from defective “dogs” connected with a derrick, and he continues his work, and is injured on the third day by a fifth stone falling upon him, he cannot recover from his employer. In such a case it is immaterial that the workman after the second stone fell called the attention of the foreman to the fact, and that the foreman said no change would be made.
    Argued Feb. 8, 1905.
    Appeal, No. 19, Jan. T., 1905, by plaintiff, from order of C. P. Delaware Co., Dec. T., 1903, No. 110, refusing to take off nonsuit in case of Elias Talbot v. Charles A. Sims, trading as Charles A. Sims & Company.
    Before Mitchell, C. J., Dean, Bbown, Mestbezat and Potteb, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Johnson, P. J.
    The facts relating to the accident are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      O. B. Dickinson, with him John E. McDonough, for appellant.
    Knowledge of a defective appliance does not necessarily constitute contributory negligence. It is plain that one may exercise due care with full knowledge of the danger to which he exposes himself. This certainly is not contributory negligence. Knowledge is presumptive evidence of contributory negligence, but it is a disputable presumption and may be rebutted by proper evidence of ordinary care under the circumstances : Evansville, etc., R. R. Co. v. Crist, 19 N. E. Repr. 810; Patterson v. R. R. Co., 76 Pa. 389; Brownfield v. Hughes, 128 Pa. 194; Fick v. Jackson, 3 Pa. Superior Ct. 378; Webster v. Coal & Coke Co., 201 Pa. 278 ; Bennett v. Glass Co., 158 Pa. 120; Oak Bridge Coal Co. v. Reed, 5 W. N. C. 3; Schall v. Cole, 107 Pa. 1.

      J. B. Eannum, for appellee.
    An employee who continues to use a machine which he knows to be dangerous takes upon himself the risk of injury therefrom: Brownfield v. Hughes, 128 Pa. 194; Green & Coates St. Pass. Ry. Co. v. Bresmer, 97 Pa. 103; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185.
    October 9, 1905:
   Opinion by

Mr. Justice Brown,

The appellant, a stone mason, was employed by the appellee in October, 1903, in his construction of a stone wall. The stones were carried to it by a boom derrick after being hoisted by the aid of “ dogs.” He had worked for the appellee at the same kind of work for several months before the accident, during which time- the same kind' of “ dogs ” were used. On October 6, two stones slipped from them within an hour and fell at the place where he was working. He and the foreman saw them fall. When the second one fell he said to the foreman, “ Paddie, them dogs ain’t no good. Why don’t you get a pair of the round dogs ? ” To which the foreman replied, “You can’t get nothing. There is not but one pair of round dogs on the job.’-’ ■ A third stone slipped' and fell the next day October 7. This was also seen by the appéllant and the foreman. About an hour later a fourth one fell, when he again reminded the foreman, who had seen the fall, that the “ dogs ” were “ no good ” and would not “ hold.” On October 8 a fifth stone fell and struck him, causing the injuries of which he complains. A judgment of nonsuit was directed by the court below, but the specific ground on which it was entered was not stated by the learned trial judge. He refused to take it off because he was of opinion that the plaintiff had voluntarily continued to subject himself to dang'er after he had known its imminence, intimating at the same time that the contributory negligence of a fellow servant was a bar to a recovery.

Two days in succession the appellant saw the peril which overhung him every time the stones were lifted by the derrick and suspended over him. His testimony is that, as the stones were constantly slipping from the “dogs,” he was “on the lookout all the time to see if the stones would fall,”and “kept close watch on them, all the time afraid a stone would slip out.” At the time the fifth one fell he could not have been on the lookout; and he did not, by his own vigilance, upon which he undertook to rely, protect himself from the constantly imminent danger, to which he voluntarily continued to subject himself after he knew his employer had not guarded against it and had not promised to do so. The only actual notice of the defective “ dogs ” that he pretends was given to his employer was that to the foreman, from whom he learned that no change would be made. From the testimony but one conclusion could have followed, if the case had been submitted to the jury, and that is that the danger was so imminent that the appellant was bound to heed it and to know that if he continued to voluntarily subject himself to it, as ho admittedly did, his employer would not be liable for the injuries he has sustained. The oft-repeated rule as to this is, that an employee who continues in an employment, which, by reason of defective machinery or appliances, he knows to be dangerous, assumes the risk of any accident that may result therefrom, with the qualification that if, in pursuance of the promise of his employer to remedy the defect, and the risk be not such as to threaten immediate danger, the employee continue in the employment and be injured without fault on his part, the employer may be liable : Brownfield v. Hughes, 128 Pa. 194.

Judgment affirmed.


text:
    Scranton Sewer.

      Appeals — Sewers—Time within which appeal may be taken — Acts of May 16, 1891, P. L. 75, May 19, 1897, P. L. 67, and April 2, 1903, P. L. 124.
    The permission given by the Act of May 16, 1891, P. L. 75, and repeated in the Act of April 2, 1903, P. L. 124, to take an appeal within thirty days from the confirmation of the report of viewers, does not take away the right given by the Act of May 19,1897, P. L. 67, to appeal within six months.

      Sewers — Municipalities—Ordinance—Municipal lien — Illegal action of city engineer — Assessments.
    A municipality can impose a valid municipal lien for street improvements only when the improvements are made in pursuance of law and the mode pointed out by the city ordinance is strictly followed.
    Where a city enacts an ordinance authorizing the construction of sewers in certain streets, and thereafter the city engineer without any authority blots out from the map showing the location of the sewers, certain portions of streets covered by the ordinance, a property owner along the line of the sewer cannot be compelled to pay an assessment for benefits to his property arising from its construction.
    Argued Feb. 20,1905.
    Appeal, No. 35, Jan. T., 1904, by The Lackawanna Iron and Steel Company from order of C. P. Lackawanna Co., Sept. T., 1902, No. 1470, dismissing exceptions to report of viewers In re Costs and Expenses of Sewer, Section G. Seventeenth Sewer District of the City of Scranton.
    Before Mitchell, C. J., Dean, Brown, Potter and Elkin, JJ.
    Reversed.
    „ Exceptions to report of viewers. Before Newcomb, J.
    Amongst the exceptions was the following :
    “ Fourth: The plans prepared for the said work and filed in the bureau of engineering, and which are distinctly referred to and made part of said ordinance, included as a portion of the territory to be sewered by said sewer certain lots and blocks, situate south of Gallagher court, which said lots and blocks were eliminated by the city engineer after the passage of said ordinance and after approval of the said plans and specifications, and were not taken into consideration by the o viewers so that ,the viewers’ report is based upon a different territory from that which is involved in the ordinance and in the plans and specifications prepared for said work. This change of territory invalidates the ordinance completely.”
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to report of viewers.

      Everett Warren, of Willard, Warren $ Knapp, with him John F. Murphy and Harold A. Watres, for appellant.
    The proceeding to assess damages for the construction of a sewer is one which very nearly resembles the confiscation of property. None of the taxpayers may be in favor of having a sewer constructed ; none of them may desire to connect with it or to use it; the land which it is supposed to sewer may be altogether vacant and unimproved land, and no necessity may exist for having a sewer; notwithstanding these circumstances, if the proceeding is properly taken under the act of assembly, and properly pursued, and the sewer built in accordance with the provision of the law governing such matters, property owners have no choice but to pay the assessment made, even though the necessity of using the sewer may never arise so far as their particular properties are concerned. And because the proceeding is one so highly prejudicial to the interests of the property owners, the courts have always held municipal corporations to the strictest compliance with the acts of assembly authorizing such assessments and the enforcement of the payment for public works: Western Penna. Ry. Co. v. Allegheny, 92 Pa. 100; Hershberger v. Pittsburg, 115 Pa. 78; Ferguson’s App., 159 Pa. 39.

      David J. Davis, city solicitor, with him H. R. Van Deusen, assistant city solicitor, for appellee.
    A property owner can complain only of defects in the assessment which affect his own property: Pittsburg v. MacConnell, 130 Pa. 463; Harrisburg v. Baptist, 156 Pa. 526 ; Erie v. Butler, 120 Pa. 374.
    October 9,1905:
   Opinion by

Mr. Justice Brown,

There was a motion to quash this appeal because it was not taken within thirty days from the confirmation of the report of the viewers. It is based upon the act of May 16, 1891, P. L. 75, which, provides that an appeal maybe taken within thirty days. This provision reappears in an amendment to the act passed April 2, 1903, P. L. 124. The permission to appeal within thirty days does not take away the right given by the act of May 19, 1897, P. L. 67, to appeal within six months, and the motion is therefore denied.

An ordinance of the city of Scranton, approved September 5, 1902, authorizes the construction of a sewer in. certain streets and courts between designated points, to be known as section “ G ” in the seventeenth sewer district of that city. On September 8, 1902, the city presented its petition to the court below, reciting the passage of the said ordinance, and asking for the appointment of viewers to assess the costs and expense of the sewer and the benefits resulting from it, in accordance with the act of May 16,' 1891, P. L. 75. Viewers were appointed, who made report, assessing the sum of $16,808.42 to be paid by the appellant for the benefits to its properties.

Though the viewers were appointed to assess the cost, expense and benefits of a sewer to be built on lines clearly designated in the ordinance, they assessed the° cost and expense of the construction and the benefits of a different one. No other action than the ordinance of September 5, 1902, was ever taken by the city councils in reference to the sewer, but the chief engineer of the city, upon the suggestion of his superior, the director of public works, blotted out from the map showingthe location of the sewer certain portions of streets and courts on which it is to be constructed, because, in his judgment, the improvements in the blotted out portions do not justify the extension of the sewer through them. Just when he assumed this wholly unwarranted authority does not appear, but when the viewers met they confined their investigation to what must be regarded as the sewer system of the chief engineer, and not the one adopted by the city authorities. That official blotted out Irving avenue from Front street to Moosic street, though the ordinance directs the sewer to be constructed from Front street to Moosic street, and thence to River street; he blotted out Front street from South Webster street to Irving avenue and portions of Gallagher and other courts in the same locality. Though the ordinance called for the sewer in these blotted out portions of the streets and courts, the viewers passed upon the question of the cost and expense and the resultant benefits, as if it were to be constructed only on the lines indicated on the tampered with map. They followed the map of an engineer; but they were directed to act in pursuance of the provisions of an.ordinance of the city of Scranton and to ascertain and assess the cost and expense and assess liability for the sewer therein specifically designated. Sewer systems can be adopted only by ordinance, but the one upon which the appellant has been assessed for benefits is nothing but that of a city’s' employee.

In dismissing appellant’s second exception to the report of viewers, the court below said: “ There remains to be considered the effect of a variance between the first section of the ordinance and the map or plan attached as part thereof in respect to the extent of the proposed sewer. This section of the ordinance specifies certain blocks of streets and courts in which the sewer is to be built which were originally included in the map but afterwards, before the appointment of viewers and without amendment, the department of public works decided to omit; and thereupon they were obliterated on the map and the view was had according to the map as so altered, and therefore not strictly according to the ordinance. The question so presented is really one of first impressions and by no means free from difficulty. On the one hand the alteration of the map was entirely unauthorized and in a sense unlawful. At first blush it would seem to go so materially to the integrity of the proceeding as to make it invalid. But on the other hand we are unable to discover, and counsel have not indicated to us, how the exceptants have been or may be injuriously affected by that means. There were no damages involved in the case; neither the cost of the sewer nor the benefits assessed will be increased as a result of the alteration. . . . As a result of the change in the map, the view and the report do not go outside of the streets mentioned in the ordinance, but certain blocks or parts of streets or alleys are omitted.” Whether the appellant had been injuriously affected by the change in the map and the substitution of the sewer system of the chief engineer for the one adopted by the city itself is not the test of its right to complain. The system is not its system, and it may or may not have been in favor of it. Without regard to its wishes a sewer can be constructed by the municipality after appropriate municipal action, but only after such action and the provisions of a valid ordinance have been followed can it be called upon as the owner of private property to pay for the benefits arising from the public improvement. This is not. an arbitrary rule, but a just and wise one, not to be broken in on by any exception. A municipality can impose a valid municipal lien for • street improvements only when the improvements are made in pursuance of law and the mode pointed out by the city ordinance is strictly followed. Such liens do not rest on any agreement or specific assent of the owner of the land charged with the burden, and the improvement is often against his wish. A clear right must, therefore, be shown by the municipality to justify such an act of sovereign power. Municipal charges legally laid on lands are sufficiently large without subjecting them to any imposed contrary to law: Western Pennsylvania Railway Co. v. City of Allegheny, 92 Pa. 100 ; Hershberger v. City of Pittsburg, 115 Pa. 78 ; Morewood Avenue, Ferguson’s Appeal, 159 Pa. 89. This is equally true of benefits assessed under the act of 1891.

The appellant can be compelled to help pay for what the ordinance provides. It cannot be assessed for anything else, but the viewers have assessed it for something else, and its complaint is, therefore, a substantial one. In asking, that it pay nearly $17,000 for benefits the city must show a sewer system to be constructed according to the directions of an ordinance, but instead its claim is for one mapped out by a city engineer on a map which he was not authorized to make. If his map cuts out a portion of the system as adopted by the city councils, the system is no longer the. city’s for the purpose of compelling property owners to contribute to the cost of its construction. To help pay for the construction of a sewer "adopted by the municipal authorities is a liability to which the appellant may be subjected, but the liability imposed upon him by the report of the viewers is not such. As it must be set aside for the reason stated, the other questions raised need not now be considered.

The decree of the court below is reversed and the report of the viewers is set aside, at the cost of the city of Scranton.