author: Mr. Justice Brown, Mr. Chief Justice Mitchell Mr. Justice Fell : Mr. Justice Thompson

text:
    Sullivan, Appellant, v. Jones & Laughlin Steel Company.

      Equity — Injunction—Treépass—Nuisance—Dust from iron furnace — Irreparable injury — Multiplicity of suits.

    If ail injury is continuous and remediable at law only by a multiplicity of suits, it can well be regarded as an irreparable one, calling for the interference of equity by the exercise of its restraining powers.
    A manufacturing concern located in a manufacturing district of a city cannot so operate its works as to actually destroy homes and other property in a residential locality in the same city.
    While a chancellor acts as of grace, such grace sometimes becomes a matter of right to the suitor in his court, and, when it is clear that the law cannot give protection and relief — to which the complainant in equity is admittedly entitled — the chancellor can no more withhold his grace than the law can deny protection and relief, if able to give them.
    The right of a man to use and enjoy his property is as supreme as his neighbor’s, and no artificial use of it b.y either can be permitted to destroy that of the other.
    On a bill in equity for an injunction it appeared that the defendant, a steel company, occupied in the city of Pittsburg land which its predecessor in title had purchased from one of the plaintiffs. On this land blast furnaces had been erected. The furnaces were at the foot of a bluff, on the top of which was a residential district, in which the properties of plaintiffs were situated. At the time the bill was filed the tops of the furnaces were a little lower and the stacks a little higher than the bluff. Prior to 1901 the district in which the plaintiffs’ properties were situated was subject to the smoke and dust from the furnaces and mills at the base of the bluff, but was not subject to ore dust in annoying and injurious quantities. Prior to the filing of the bill, the defendant rebuilt and greatly enlarged its furnaces, and began to use an ore known as “Mesaba ore” which was of a fine and dustlike quality. Prior to this it had used “ Old Range ’ ’ ore which was coarse and lumpy, and did not give off dust in injurious quantities. The change was made because the Old Range ore was being exhausted. The capacity of the new furnaces was twice or three times that of the old ones. The dust given off by the new furnaces using the Mesaba ore settled on plaintiffs’ houses, choked up rain conductors, discolored fabrics and paints, injured carpets and curtains, destroyed fruit and shade trees and vegetation generally, and depreciated the value of the properties more than twenty-five per cent. A number of tenants had been forced to leave the properties, and on one occasion plaintiffs had removed from the porch roofs three barrels of ore dust, the weight of which amounted to twelve hundred pounds. It did not appear that the furnaces were improperly constructed, or that there was any recklessness in their operation. There was evidence that there were appliances patented to prevent the escape of dust, but it was shown that these appliances had not been generally adopted. The material facts in the case were not in dispute. Held, that, as plaintiffs’ properties were being destroyed, they were entitled to an injunction.
    Mitchell, C. J., Fell and Thompson, JJ., dissent.
    Argued Oct. 29, 1903.
    Reargued Feb. 16, 1904.
    Appeal, No. 94, Oct. T., 1903, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1902, No. 620, dismissing bill in equity, in case of E. R. Sullivan and Jennie P. A. Sullivan, his wife, v. Jones & Laughlin Steel Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ., on reargument.
    Reversed.
    Bill in equity for an injunction. Before Frazer, P. J.
    The facts appear by the opinion of'the Supreme Court.

      Error assigned was decree dismissing the bill.

      Thomas Patterson and James R. Sterrett, with them M. W. Acheson, Jr., for appellants.
    The injury to plaintiff’s property being directly the result of defendant’s acts or trespasses, the damage being serious, immediate and continuing, and the facts undisputed, equity will interfere by injunction to restrain the injurious act: St. Helen’s Smelting Co. v. Tipping, 11 H. L. C. 642; Dennis v. Eckhardt, 3 Grant, 390; Campbell v. Seaman, 63 N. Y. 568; Commonwealth v. P. & C. R. R. Co., 24 Pa. 159; Pennsylvania Lead Company’s Appeal, 96 Pa. 116; Appeal of Ladies’ Decorative Art Club, 22 W. N. C. 75; Evans v. Reading Chemical Fertilizing Co., 160 Pa. 209; Gavigan v. Atlantic Refining Co., 186 Pa. 604.
    ' Where there is a substantial injury to a property right, which cannot be redressed except by a multiplicity of suits, the granting or withholding of an injunction is not a matter of grace or a question of the balance of the injury, but follows as a matter of right, when the injury is once shown to exist: Bigler v. Penna. Canal Co., 177 Pa. 28.
    The doctrine of the Sanderson cases applies only to those instances in which the defendant is raising minerals from his own property and which, taking all the precautions which he can, cannot be raised without injury to others.

      George 0.' Wilson, with him Win. D. Evans and Clarence Burleigh, for appellee,
    cited: Huckenstine’s App., 70 Pa. 102; Richards’s App., 57 Pa. 105; Wier’s App., 74 Pa. 230; Penna. Lead Co.’s App., 96 Pa. 116; Bigler v. Penna. Canal Co., 177 Pa. 28.
    March 28, 1904:
   Opinion by

Mr. Justice Brown,

The material facts in this case, of more than ordinary interest and importance, are not in dispute. They are readily gathered from the court’s findings and from testimony which is uncontradicted. In 1859 the appellee’s predecessors in title purchased land from Jennie P. A. Sullivan, one of the appellants, and erected furnaces on it. The location of the land at that time was in Pitt township, which has since been annexed to the city of Pittsburg. It lies between the Monongahela river and Second avenue. This avenue runs along the foot of a bluff, on the top of which the properties of appellants are situated, at an average distance of about 1,000 feet in a northerly direction from the furnaces of the appellee. The tops of these furnaces are a little lower and the stacks a little higher than the bluff. The district in which the furnaces are located is, and for many years has been, distinctively and exclusively a manufacturing one, and the district on top of the bluff, where appellants’ properties are situated, is, and has been for some time, a residence locality, which has been subject to the smoke and dust from the furnaces and mills along the Monongahela river at the foot of the bluff, but was never subject to ore dust, in annoying and injurious quantities, until about July 1, 1901. Prior to 1898 the appellee had three furnaces in blast on the sites of the present ones, and, about seven or eight years before this bill was filed, began to use “ Mesaba” ore. It had been using “ Old Range ” ore, the supply of which is being exhausted. The amount of “ Mesaba ” ore used during the time stated averaged about thirty per cent of the total quantity used. This “ Mesaba ” ore, brought from Minnesota, is of a fine and dustlike quality. “ Old Range ” is coarse and lumpy. No complaint is made of the emission and settling of dust upon the properties of appellants when either or both these ores were used prior to 1901.

Between March, 1898, and May, 1901, according .to the court’s ninth finding, “The three furnaces at that time eon-^ stituting the Eliza furnaces were rebuilt, improved and enlarged upon the site then and now occupied by them, and a fourth furnace added upon that site. The first of the rebuilt furnaces was ‘ blown in ’ September 1,1899; the second May 13, 1900; the third, January 21, 1901, and the fourth on May 8, 1901. These furnaces as re-built, improved and enlarged, are constructed in accordance with modern and approved plans, and in their construction are in every respect equipped with modern appliances and improvements, and are equal, in many respects superior, to other furnaces in this locality in which pig iron is manufactured, and are among the largest known in the iron business, having a capacity each of about 500 tons daily production and consuming together about 4,000 tons of ore daily.” The capacity of these new furnaces is twice or three times that pf- the old ones replaced by them. After the fourth and last furnace was blown in the annoyance and injury began, against the continuance of which relief is sought by this bill.

The escape of dust from blast furnaces in large quantities is due to what is known as a “slip,” a definition of which is found in the court’s eleventh finding: “ The escape of dust from blast furnaces into the atmosphere is, and always has been, incident to their operation. It escapes at all times, but in larger quantities when what is known as a ‘ slip’ occurs in the furnace. In the operation of all blast furnaces' ‘slips’ occur from time to time. These are occasioned by the caking or encrusting 'of the ore in the stack of the furnace, and the falling away of the ore, fuel and limestone beneath the crust by reason of the continued combustion and the liquefaction of the iron, thus forming a chamber or vacant space into which the encrusted ore at the top drops, occasioning an explosion, the violence of which depends upon the extent of the cavity produced, and the amount of gas accumulated therein. ‘ Slips’ occur at irregular intervals, and perhaps more frequently since the use of Mesaba ores, their frequency depending upon the manner in which the furnace is working. Sometimes there may be but four ‘ slips’ in twenty-four hours, while at other times during the same period the number may be as high as eighteen.”

The seventeenth finding is: “ Ore dust was first noticed settling upon properties in the neighborhood of defendant’s furnaces as early as 1899, but the deposit did not become serious until about July, 1901. Since that time, dust, in greater or less quantities, has been carried from the defendant’s furnaces and deposited upon and about plaintiffs’ premises. The effect of the dust is not only annoying, but injurious to property; it chokes rain conductors upon the houses, discolors fabrics and paints, and injures carpets and curtains; it is of a greasy nature and difficult to remove from both garments and paints ; it has also been destructive to fruit and shade trees and vegetation generally, and has depreciated the value of plaintiffs’ properties from twenty-five per cent to fifty per cent.” The furnaces were operated in a careful and skillful manner, and no effort or money was spared to keep them in constant good order and repair. As to the escape of this ore dust, a further finding is the sixteenth: “ The escape of ore dust due to ‘ slips’ in the furnace is a financial loss to the operator, both in the matter of production and in the loss of ore; the defendant has been diligent in its efforts to find means, or to adopt appliances or inventions which will prevent the escape of dust from its furnaces; up to the present time no appliance has been found which will effectually prevent, or reasonably diminish, the escape of the ore dust from blast furnaces, when ‘ slips’ occur. The use of Old Range ores exclusively would not materially lessen the number of ‘ slips’ occurring in furnaces, but would to a considerable extent decrease the amount of ore dust discharged into the air at each explosion.”

Answering requests for findings of fact by the appellants, the court said that, in its own findings, it had substantially found the following : “ The residence district in which plaintiffs’ property is situated, and which is a part of the Fourteenth ward of the city of Pittsburg, was, prior to the year 1899, a pleasant and habitable part of the city. While subject, as most parts of the city are, to smoke, it occasioned no special inconvenience to the inhabitants and the testimony shows that flowers, trees, and shrubs were kept and cared for, and were not injured by any smoke or dust which might prevail throughout the' district. Some of the witnesses for the plaintiffs testify that they first noticed the ore dust as early as 1899, but it did not become serious until the year 1901. In the latter year, when all four furnaces were completed and in operation, the ore dust was thrown out in large quantities and at more frequent intervals and has increased from that time down until the filing of the bill. The plaintiffs’ property by-reason of its location near the defendant’s furnaces, receives the full effect of the discharge of ore dust therefrom. Almost all the trees in the orchard which formerly produced some eighty bushels of pears in a season, the shade trees, of which there were something over twenty in number, and the shrubbery about the house have been for the most part destroyed. The whole property has been blackened and disfigured. A number of tenants have been forced to leave the dwelling houses by reason of the penetrating and damaging deposits of ore dust. From the conductors leading from the porch roofs in front of these houses the plaintiffs had removed on one occasion three barrels full of ore dust, the weight of the amount thus removed being some 1,200 pounds.” The facts set forth in appellants’ fifteenth request, which was not refused, but affirmed; to the extent that the facts had been found in the court’s own seventeenth finding, were supported by testimony that was not contradicted. These facts, as set forth in that request, were-: “The effect of the ore dust upon properties upon which it is deposited is very damaging. It corrodes tin and metal work which are exposed to it, it chokes and fills conductors, it discolors and removés paint, it affects injuriously fabrics in the interiors of houses both by impregnating them with dust and by attacking and injuriously affecting the fibre. People are compelled to keep their doors and windows closed during the passing of a dust shower, and even with these precautions, the ore dust sifts in through the crevices to such an extent that it is easily traceable upon window sills, floors, books, furniture and carpets. The ore dust frequently descends in such large quantities that persons caught in it are compelled, in some instances, to hoist umbrellas and seek refuge on porches and in houses. Their clothing is sometimes stained and otherwise injured. It is of a greasy nature, and any garment or surface affected by it is difficult to cleanse.” We have, on this appeal, on the foregoing facts, the single question of the appellants’ right to some equitable relief.

The appellants are not complaining because appellee is operating its furnaces. They would not be heard if that were their only complaint. The city of Pittsburg is a busy manufacturing center, and by day and by night clouds of smoke ascend from the stacks of its numberless mills, factories and furnaces, ofttimes hanging over it like a pall. In a manufacturing district of this city the appellee has established its furnaces and is engaged in an important and lawful business. The appellants, in a residential portion of the same city, close by this manufacturing district, own houses in which their tenants live. So situated, they must expect a measure of annoyance and discomfort, arising from the dust and smoke, which cannot be avoided in their manufacturing metrópolis, and are borne to the homes of the city and fill the air that is breathed. To this general annoyance and discomfort appellants submitted for years without complaint, and they were bound to do so, for they chose to erect their houses not ouly in sight of great manufacturing plants, but within certain reach of the smoke and dust, without which the fires of the furnaces and factories could not burn. Of all this there is now no complaint by them. What, in common with all other citizens, they had endured for years, up to the summer of 1901, they were willing to continue to- endure ; and they are not now complaining of appellee’s manufacture of iron, even with “ Mesaba ” ore.. Their complaint'is that the appellee, in tearing • down the three furnaces and replacing them with the four new ones, of immense size and several times the capacity of the old, and in using in them the.fine “ Mesaba ” ore dust, without so operating them as to prevent the escape of the dust from “ slips,” causing admitted devastation, is practically confiscating their properties. To preserve these to them, and to protect them in their absolute right to the enjoyment of their private property, subject to the general conditions of the city in which they live, this bill was filed; and its prayer is not to restrain the.appellee from operating its furnaces, and manufacturing iron, but is to enjoin it from such operation of them as causes the serious and exceptional injuries alleged in the bill and proved by the testimony.

As already stated, the facts here are not in dispute. Not a single finding of fact by the learned judge below is assigned as error by the appellants, whose bill he dismissed. Equitable relief cannot, therefore, be withheld because more light as to any alleged fact could be obtained from a jury on the common-law side of the court. It must be granted or refused under practically admitted conditions. If, under these conditions, the appellants are unlawfully injured by appellee, as the damage done is of’ a serious character not to be measured by ordinary standards, and is immediate and continuing, an attempt to remedy the wrong by a multiplicity of suits would soon make the remedy worse than the wrong itself. (If an injury be continuous and remediable at law only by a multiplicity of suits, it can well be regarded as an irreparable one, calling for the interference of equity by the exercise of its restraining powers Scheetz’s Appeal, 35 Pa. 88; Pennsylvania Lead Company’s Appeal, 96 Pa. 116; Bitting’s Appeal, 105 Pa. 517; Evans v. Reading Chemical Fertilizing Company, 160 Pa. 209. “ By the 13th section of the act of the 16th of June, 1836, made general as to the courts of common pleas throughout the commonwealth by the Act of the 14th of February, 1857, P. L. 39, it was enacted that ‘ The Supreme Court when sitting in banc in the city of Philadelphia, and the court of common pleas of the said city and county shall have the power and jurisdiction of courts of chancery so far as relates, .... to the prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals.’ Under this section it has been repeatedly and uniformly held that injunction is- the appropriate remedy for the prevention of trespasses and nuisances, which, by reason of the persistency with which they are repeated, threaten to become of a permanent nature. ... It is the appropriate remedy for such torts because they are within the letter and the spirit of the statute, and it is no objection that the injured party may have a remedy at law. {jn such cases the legal remedy may be and usually is wholly inadequate! The damages are frequently difficult of computation, and where they may be readily assessed it will often happen that the expense of a recovery will exceed the amount recoverable for any one of the successive trespasses. It was therefore a wise provision of the legislature that enabled the courts to put an end by a single decree to such controversies as are presented in this record, and the jurisdiction ought not to be abdicated. From this it is not to be inferred, however, that injunction is the appropriate remedy for a single trespass, or for any number of trespasses in the absence of a threat either express or inferable from the manner of their commission that they will be repeated.” Walters v. McElroy, 151 Pa. 549.

While the right of the appellee to locate and operate its furnaces in a manufacturing district of the city of Pittsburg must be conceded, there is a right in the appellants entitled to no less recognition and protection by the law, and that is the one they have exercised, of erecting houses on their lands in a residential portion of the same city. Their right is not only to erect these houses, but to enjoy the use of them and the land surrounding them, subject, of course, to the smoky and dusty conditions that ordinarily and constantly come from the mills and furnaces skirting both sides of the Monongahela river. Of this they neither do nor can complain to a chancellor. “ The people who live in such a city or within its sphere of usefulness do so of choice, and they voluntarily subject themselves to its peculiarities and its discomforts, for the greater benefit they think they derive from their residence or their business there.” Huckenstine’s Appeal, 70 Pa. 102.

If this bill were for relief from personal inconvenience and interference with the appellants’ full and free enjoyment of their property, due merely to the conditions of smoke and dust that have existed for years and will exist as long as the city itself continues to be the great steel and iron manufacturing center, it would be promptly dismissed. Of the smoke and dust now coming from all the other surrounding mills and furnaces no complaint is made, and of what used to come from the old furnaces of the appellee the appellants made no complaint, and would not be complaining now but for the changed conditions brought about by the appellee. The court below, though requested by it, refused to find that “ the matters complained of by plaintiffs are only such discomforts and inconveniences as are and always have been incident to and consequent upon close proximity to an exclusively manufacturing section of a manufacturing city.”

ÍThe changed conditions brought about by the appellee have not resulted from the development and natural use and enjoyment of its own property] as was the situation in Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, the doctrine of which case has never been and never ought to be extended beyond the limitations put upon it by its own facts. There it was said of the coal company: “ They have brought nothing on to the land artificially. The water as it is poured into Meadow Brook, is the water which the mine naturally discharges; its impurity arises from natural, not artificial causes. The mine cannot, of course, be operated elsewhere than where the coal is naturally found, and the discharge is a necessary incident to the mining of it.” Here the furnaces were artificially brought by appellee on to its lands by being built there by it, and the “ Mesaba ” ore converted by the furnaces into iron is also artificially brought there by it. It knew, when about to erect these new furnaces, of immense size and great capacity, that, in their operation, the rights of others, among them those of the appellants, to the use and enjoyment of their property, situated in what, for years, had been a portion of- the city given up to residences, were not to be utterly disregarded'; and, when it began to use the fine ore dust, which has manifestly caused the serious injury to the property of the appellants, it was again bound to consider the effect of the use of this ore upon the nearby residences. By this we are not to be understood as saying, or even intimating, that the large furnaces could not be erected and operated, that “ Mesaba ” ore cannot be used, or that if, in the operation of the furnaces and the use of this fine ore, the discomfort and annoyance of the appellants had simply been increased in degree, they would be entitled to equitable relief. When, however, as the result of the improvements voluntarily made by the appellee, and its use of a new ore, the annoyance, inconvenience and injury to which the appellants are now subjected do not differ merely in degree from those to which they formerly submitted as part of their lot as citizens of the “ Iron City,” but in kind, and practical 'destruction and confiscation of their properties confront them, a very different situation is presented to a chancellor from those cases in which the rule is laid down that people who live in such a city, or within its sphere of usefulness, do so of choice, and, therefore, voluntarily submit themselves to its peculiarities and its discomforts. That very rule, as announced in Huckenstine’s Appeal, supra, recognizes their right to live and have their homes there; and a case cannot be found as authority for the right of any manufacturing company, located in a manufacturing district of a city, to so rebuild and operate its furnaces as to actually destroy homes and other property in a residential portion of the same city. That this is what the appellee is doing with the properties of the appellants is an irresistible conclusion, and the only relief is by injunction. If it is to be permitted to so operate its furnaces that the burning and corroding ore dust emitted from their stacks is .borne by the winds and scattered over the properties of the appellants with destroying effect, simply because of the plea that it cannot be helped, for the same reason it might ask a chancellor to stay his arm from arresting the descent of showers of fire from the same stacks down on the same nearby homes. If the appellee possessed the right of eminent domain, it might take the properties of the appellants and do with them what it pleases, but, not .having such high right, it cannot do so, even indirectly. It has a right to the use and enjoyment of its own property, but so have the appellants to theirs, for whom the law says to the former “sic utere tuo, ut alienum non laedas.”

The court below found that “ the use of Mesaba ores in the manufacture of pig iron seems at present to be a necessity.” At the same time it refused to find, as requested by the defendant, that “ it is to-day a practical and commercial impossibility for manufacturers of iron and steel to obtain a supply of ores for their blast furnaces other than by the use of Mesaba ores.” There was a finding, “ That appliances have been suggested for the purpose of diminishing or preventing the dissemination of ore dust from furnaces. These appliances, however, have not been generally adopted by operators. The defendant company, however, has recently entered into a contract with the patentee of one of these appliances known as the Keelin Top, for the placing upon, at least one of their furnaces of that design. It has also entered into a contract for the construction at its furnaces of a plant for the briquetting of Mesaba ore, with the end in view of preventing ‘ slips,’ and thereby avoiding the escaping of dust into the atmosphere. The success of these devices is not assured, they being, to a great extent, matters of experiment.” It is, therefore, by no means certain that the appellee will not be able to obviate, as is its duty, the continuance of the great injury done to the appellants, either by substituting another ore for the “ Mesaba ” or by adopting appliances that will prevent the escape of dust from “ slips.”

In dismissing the plaintiff’s bill the learned judge stated that he knew of no case in which the identical question here involved had been passed upon by the courts!] He relied, however, as bearing upon it, on Richards’s Appeal, 57 Pa. 105; Huckenstine’s Appeal, 70 Pa. 102; Dilworth’s Appeal, 91 Pa. 247; Robb v. Carnegie, 145 Pa. 324; and Daugherty Typewriter Co. v. Kittanning Iron & Steel Mfg. Co., 178 Pa. 215. The unquestionable general principles recognized in these cases were applicable to the facts in each. An injunction was refused in the first, Thompson, C. J., saying: “ On full consideration of all the testimony in the case, we are of opinion the injunction was properly refused in the court below.” The testimony showed that the smoke and soot were carried to, over and into the dwelling and factory of the plaintiff ; if the door and windows were open, the soot sometimes settled on the furniture of the house and on the machinery and goods in the factory. It was only when the wind blew from a particular point, and when the atmosphere was in a particular state, that the smoke and soot were carried to the plaintiff’s buildings. They were annoying to the occupants of the plaintiff’s house and the operatives of his factory, and, to a slight extent, injurious to those buildings. There was no evidence of any injury to the goods manufactured or to the health of the family or operatives. In Huckenstine’s Appeal, in refusing the injunction, it was said: “ The gravamen of the plaintiff’s bill is that the smoke and gases from the defendant’s kiln injured and partially destroyed his grapevines and fruit trees, and make his dwelling uncomfortable. In regard to the injury to the vines and trees, which is the chief ground of complaint, the plaintiff’s case is doubtful on two grounds. In the first place, his testimony as to the injury from the causes stated is counterpoised if not outweighed by the testimony of the defendant both in the number and skillfulness of the witnesses. And in the second place it is rendered more than doubtful by the testimony of the defense that the true cause of the blight in the vines is the nature, and cold and wet condition of the soil. The force of the rebutting evidence that the hillside is dry, and for the reason that water will not lie on a slope, is broken by the consideration known to every common observer that water following the lines of stratification will exude from hillsides, ’ oftentimes in large quantities and the whole year round. To entitle a plaintiff to an injunction he must make out a plain case of injury and damage. ‘ If the injury be doubtful, eventual or contingent, equity will not interfere by injunction.’ ” In both these cases the injury, if any, was comparatively slight, {jn Dilworth’s Appeal, which was a bill to restrain the erection of a powder magazine, the facts, as stated in the opinion of the court, were: “ This magazine has been located so as to endanger as few persons and as little property as possible, and yet be reasonably accessible as a point of supply and distribution; it is more remote from population than the magazines generally in use throughout the United States, and it is doubtful if a better location could be made in Allegheny county. It is situated about two miles from East Liberty, the nearest closely built up district, and is separated therefrom by intervening hills and ravines. It is in a sparsely settled locality, for the vicinity of a city, and land near ithas not been, nor is it likely to be for some years, in demand for building purposes. That portion of Lincoln avenue which terminates at a point five hundred feet from the magazine is. very little travelled, very few people travel it within considerable distance of its terminus, having no occasion to do so ; it was the wildest of the many absurd enterprises undertaken in Pittsburgh to carry city improvements into wild rural regions, expecting population to rapidly follow. The other public road, passing within 22 feet of the magazine, has for some time been almost abandoned by the people of the vicinity, and is used by about three farmers. The magazine is so situated that the force of an explosion would be down the ravine and away from the road.” In Robb v. Carnegie whatever was said by Williams, J., as to an injunction was purely obiter dictum. The question of equitable relief was not before the court. What was decided, was, that the plaintiff was entitled to recover on the common-law side of the court, and, in making the passing remark that the evidence in the case would not justify an injunction, it was said: “ It shows a selection of a site as well adapted to the business, and as remote from dwellings as any in that region. To enjoin the manufacture of coke, at such a site, would amount to a prohibition of its manufacture, and the destruction of vast allied and dependent industries of immense value to the public as well as to those directly engaged in them.” Audit was further said: “But the production of iron, or steel, or glass, or coke, while of great public importance, stands on no different ground from any other branch of manufacturing, or from the cultivation of agricultural products. They are needed for use and consumption by the public, but they are the results of private enterprise, conducted for private profit and under the absolute control of the producer. He may increase his business at will, or diminish it. He may transfer it to another person, or place, or state, or abandon it. He may sell to whom he pleases, at such price as he pleases, or he may hoard his productions, and refuse to sell to any person or at any price. He is serving himself in his own way, and has no right to claim exemption from the natural consequences of his own act. The interests in conflict in this case are, therefore, not those of the public and of an individual, but those of two private owners who stand on equal ground as engaged in their own private business.” In Daugherty Co. v. Kittanning Mfg. Co., the question before this court was the refusal of the court below to award a preliminary injunction, and all we did was to remit the case, saying: “ It is neither necessary nor proper that we should now intimate any opinion as to the merits of the case generally. It goes back for further proceedings — possibly for final hearing on bill, answer and full proofs. A materially different state of facts may then be presented. •’We therefore adhere to our general rule in appeals from interlocutory decrees, and merely hold that, as presented to the court below, this case is not one that would have justified a preliminary injunction.” It needs no further demonstration from us to point out the difference between the facts in the first four foregoing cases and the undisputed ones in the present. The fifth has no application whatever.

It is urged that as an injunction is a matter of grace, and not of right, and more injury will result in awarding than refusing it, it ought not to go out in this case. CA chancellor does act as of grace, but that grace sometimes becomes a matter of right to the suitor in his court, and, when it is clear that the law cannot give protection and relief — to which the complainant in equity is admittedly entitled — the chancellor can no more withhold his grace than the law can deny protection and relief, if able to give them.j3 This is too often overlooked when it is said that in equity a decree is of grace, and not of right, as a judgment at law. In Walters v. McElroy et ah, supra, the defendants gave as one of the reasons why the plaintiff’s bill should be dismissed, that his land was worth but little, while they were' engaged in a great mining industry which would be paralyzed if they should be enjoined from a continuance of the acts complained of; and the principle was invoked, that, as a decree in equity is of grace, a chancellor will never enjoin an act where, by so doing, greater injury will result than from a refusal to enjoin. To this we said: “ The phrase ‘ of grace ’ predicated of a decree in equity had its origin in an age when kings dispensed their royal favors by the hands of their chancellors, but, although it continues to be repeated occasionally, it has no rightful place in the jurisprudence of a free commonwealth, and ought to be relegated to the age in which it was appropriate. It has been somewhere said that equity has its laws as law has its equity. This is but another form of saying that equitable remedies are administered in accordance with rules as certain as human wisdom can devise, leaving their application only in doubtful cases to the discretion, not the unmerited favor or grace of the chancellor. Certainly no chancellor in any English speaking country will at this day admit that he dispenses favors or refuses rightful demands, or deny that when a suitor has brought his cause clearly within the rules of equity jurisprudence, the relief he asks is demandable ex debito justitise, and needs not to be implored ex gratia. And as to the principle invoked, that a-chancellor will refuse to enjoin when greater injury will result from granting than from refusing an injunction, it is enough to observe that it has no application where the act complained of is in itself as well as in its incidents tortious. In such case it cannot be said that injury would result from an injunction, for no man can complain that he is injured by being prevented from doing to the hurt of another that which he has no right to do. Nor can it make the slightest difference that the plaintiff’s property is of insignificant value to him as compared with the advantages that would accrue to the defendants from its occupation.”

There can be no balancing of conveniences when such balancing involves the preservation of an established right, though possessed by a peasant only to a cottage as his home, and which will be extinguished if relief is not granted against one who would destroy it in artificially using his own land. Though it is said a chancellor will consider whether he would not do a greater injury by enjoining than would result from refusing and leaving the party to his redress at the hands of a court and jury, and if, in conscience, the former should appear he will refuse to enjoin : Richards’s Appeal, supra ; that “ it often becomes a grave question whether so great an injury would not be done to the community by enjoining the business, that the complaining party should be left to his remedy at law: ” Dilworth’s Appeal, supra; and similar expressions are to be found in other cases, “ none of them, nor all of them, can be authority for the proposition that equity, a case for its cognizance being otherwise made out, will refuse to protect a man in the possession and enjoyment of his property because that right is' less valuable to him than the power to destroy it may be to his neighbor or to the public: ” Evans v. Reading Chemical Fertilizing Co., 160 Pa. 209. The right of a man to use and enjoy his property is as supreme as his neighbor’s and no artificial use of it by either can be permitted to destroy that of the other. To this rule if at times there are apparently some exceptions, the present case is not one of them.

The decree of the court below is reversed, the bill is reinstated and the record remitted, with direction that an injunction be issued perpetually enjoining Jones & Laughlin Steel Company, the appellee, from such operation of its furnaces, situated in the Fourteenth ward of the city of Pittsburg, and described in the bill, as to cause to be emitted therefrom clouds of ore dust, working and causing the injury to the property of the appellants as in the bill described and found by the court below, the costs on this appeal and in the proceedings below to be paid by the appellee.

Mr. Chief Justice Mitchell

dissenting:

It is conceded that when the respondents located their works they were in an appropriate place. Certainly the complainants cannot deny this for they sold the land for this express purpose. The establishment of the works carried with it the right to future change and expansion not only as to extent but as to methods in the progress of the business. It was accompanied at all times by some inconvenience to residents of the neighborhood, and I am unable to concur in the views of the majority that the change by the introduction of the use of Mesaba ore was a change in the kind of injury. On the contrary I am of opinion that it was one of degree only, but whether that be the correct view or not the question is one of fact which is by no means clear and therefore should go in the first instance to a court of law to be settled by a jury. Where a clear legal right is being infringed I agree that the remedy in equity is as mandatory as in law, but where as here the question is between two conflicting rights, their respective claims should be ascertained at law before equity is called upon to aid either. I would therefore affirm the decree.

Mr. Justice Fell :

I concur in the views expressed by the Chief Justice.

Mr. Justice Thompson

dissenting:

The principle which impels a chancellor to act in that mass of cases where his action will avoid a multiplicity of recoveries at law or will stop injuries so repeated in character as likely to become excessively burdensome seems a logical result of the necessity of an equitable jurisdiction to avoid oppressive litigation and irreparable mischief and in the exercise of it there is necessarily the element of a discretion based upon sound principles. The decrees made by virtue of it are often described as “ matters of grace,” a substantive thing not to be refined into a meaningless phrase, and accordingly our judicial literature furnishes an important class of litigation in which they are so designated.

In Keeling v. Pittsburg, etc., Railroad Company, 205 Pa. 31, Mr. Justice Dean, quoting, says: “An injunction is of grace and not of right and a chancellor is not bound to make a decree which will do far more mischief and work far greater injury than the wrong he is asked to redress.”

In Robb v. Carnegie, 145 Pa. 324, Mr. Justice Williams says:' “ An injunction is not of right but of grace, and will never be issued by a court of equity when it will inflict a greater injury than it will prevent.”

In Huckenstine’s Appeal, 70 Pa. 102, Mr. Justice Agnew says: “ Its (a court of equity) aid is not of right but of grace and it must be sure that the exercise of this kingly power is just, wise and proper, before it takes from the citizen his means of livelihood, and destroys the value of his property for legitimate uses.”

In Richards’s Appeal, 57 Pa. 105, Mr. Chief Justice Thompson says : “ It seems to be supposed that, as at law, whenever a case is made out of wrongful acts on the one side and consequent injury on the other, a decree to restrain the act complained of must certainly follow, as a judgment would follow a verdict in a common-law court. This is a mistake. It is elementary law, that in equity a decree is never of right, as a judgment of law is, but of grace.”J — *

As a decree in equity is a matter of grace a chancellor will not make it where it will produce a greater injury than it will prevent, and because it is a matter of grace .will balance the inconveniences that may be caused either by granting or refusing it. This principle is well illustrated in Richards’s Appeal, supra. In that case the plaintiff, a manufacturer, sought to restrain the defendant company from operating a furnace for smelting iron because in their furnaces they used semi-bituminous coal and that dense masses of smoke and soot were emitted from them filling his house and factory with sulphurous, unwholesome and noxious smoke, injuring the furniture and causing discomfort as well as unhealthiness. The defense was that for a period of thirty years or more bituminous coal had been used and that semi-bituminous coal was subsequently used and that the smoke was but slightly sulphurous and while it was disagreeable it was not unwholesome; that semi-bituminous coal was necessary in order to make superior bar iron; that to purchase plaintiff’s whole property would cause them less loss than the injury consequent upon stoppage; that they employed in their business a capital of $500,000 and more than 1,000 persons. Mr. Chief Justice Thompson in delivering the opinion of the court in that case says:

“ A careful consideration of the testimony satisfies us that the use of semi-bituminous coal, the fuel complained of, is necessary to the successful manufacture of iron fit for axles, cannon and the like, in the manufacture of which the defendants are largely engaged; that the process of manufacture and fuel used, are generally employed in similar establishments, and that there was neither a negligent nor wilful infliction of injury upon the plaintiff or his property in the defendants’ mode of operating their works. Whatever of injury may have, or shall result to his property from the defendants’ works by reason of the nuisance complained of, is such only as is incident to a lawful business conducted in the ordinary way, and by no unusual means. Still there may be injury to the plaintiff; but this of itself may not entitle him to the remedy he seeks. It may not if ever so clearly established, be a case in which equity ought to enjoin the defendants in the use of a material necessary to the successful production of an article of such prime necessity as good iron; especially if it be very certain that a greater injury would ensue by enjoining, than would result from a refusal to enjoin.”

In Huckenstine’s Appeal, supra, a bill was filed to restrain the conduct of a brickmaking business in which there was evolved,smoke, vapor and gases destructive of plaintiff’s vineyard, orchard and trees, and Mr. Justice Agnew in dismissing the bill and remitting plaintiff to his action at law says: “ It (brick burning) as many other, useful employments do, may produce some discomfort, and even some injury to those nearby. But it does not-follow that a chancellor would enjoin therefor. The heat, smoke and vapor of a brick kiln, cannot compare, with those of many manufactories carried on in the very heart of such cities as Pittsburg and Allegheny. A court exercising the power of a chancellor, whose arm may fall with crushing force upon the everyday business of men, destroying lawful means of support, and diverting property from legitimate uses, uses cannot approach such cases as this with too much caution.”

Again, he says: “In the present case the kiln of defendant is situated on an outskirt of the city of Allegheny. The properties of the plaintiff and defendant lie adjoining each other, on the hillside overlooking the city, whose everyday cloud of smoke from thousands of chimneys and stacks hangs like a pall over it obscuring it from sight. This single word describes the characteristics of this city, its kind of fuel, its business, the habits of its people and the industries which give it prosperity and wealth. The people who live in such a city or within its sphere of influence do so of choice, and they voluntarily subject themselves to its peculiarities and its discomforts, for the greater benefit they think they derive from their residence or their business there.”]•"

These cases clearly confirm the principle that a chancellor will consider whether he would not do a greater injury by enjoining than would result in refusing to enjoin and leaving the party to his redress at the hands of a court and jury.

While Robb v. Carnegie, 145 Pa. 324, was an action at law to recover damages for injuries to land in the operation of a coke furnace, Mr. Justice Williams says:

“We think it is true as held by the judge of the court below, that the evidence in this case would not justify an injunction. It shows a selection of a site as well adapted to the business, and as remote from dwellings as any in that region. To enjoin the manufacture of coke, at such a site, would amount to a prohibition of its manufacture, and the destruction of vast allied and dependent industries of immense value to the public as well as to those directly engaged in them.”

Again he says: “ It is a fundamental principle of our system of government that the interest of the public is higher than that of the individual; so that when those interests are in conflict the latter must give way. If the individual is thereby. deprived of his property without fault on his part, he is entitled to compensation; but if he is affected only in his tastes, his personal comfort or pleasure, or preferences, these he must surrender for the comfort and preferences of the many. Thus highways are necessary to the public business and comfort. Some noise and dust are necessarily occasioned by the legitimate use of them. This may be disagreeable, perhaps in some cases positively harmful, to some one or more of the persons living along them ; but for this there is no remedy at law or equity. It is one of the necessary consequences of subjecting the individual to the public, as to those things in which their interests are in conflict.”

In Wier’s Appeal, 74 Pa. 230, Mr. Justice Sharswood says : “ There is a very marked distinction to be observed in reason and equity between the case of a business long established in a particular locality, which has become a nuisance from the growth of population and the erection of dwellings in proximity to it, and that of a new erection threatened in such vicinity.”

It doubtless may be contended that the principle of balancing inconveniences cannot be made the means of a successful assault upon the strong wall built around the right of property which secures it from invasion and not infrequently eloquent phrase finds utterance in vindication of an established right of property from the invasion which may spring from numerous actions or the repetition of injuries. The fact of a possible series of actions or of repeated injuries does not necessarily negative an adequate remedy at law. There is a class of cases where the injury is of a continuing and permanent character and the damages are entire and susceptible of immediate recovery^ Central Branch Union Pacific Railroad Co. v. Andrews, 26 Kansas, 702; Fowle v. New Haven & Northampton Co., 112 Mass. 334; C. & E. I. R. R. Co. v. Loeb, 118 Ill. 203; Stodghill v. R. R. Co., 53 Iowa, 341. Also see Gavigan v. Atlantic Refining Company, 42 W. N. C. 465. does not follow that merely a possible recurrence of suits or of injuries will necessarily induce a chancellor to act. The energy of the equitable principle may well be aroused when beyond question the actions become so repeated and the injuries so continuous, resulting in irreparable mischief, that the vanity of the adequacy of the remedy at law is clearly manifest and then the equitable principle may be asserted because necessary for protection. While the facts of the present case do not furnish a case for the exercise of a jurisdiction founded upon such necessity, they however do establish one for the application of the principle of Richards’s Appeal and the kindred cases, supra. They are that the furnaces of the appellee company have been operated by it and its predecessors since 1860, on the present site and on the land purchased from Mrs. Sullivan, one of the appellants ; that the iron and steel industries of the appellee have been operated by it for nearly fifty years on their present site; that there is a bluff 150 feet above Second avenue and that appellant’s properties are situate on this bluff and about 1,000 feet from the blast furnaces the stacks of which are a little, above the level of the top of the bluff. That the district in which these mills are located is and has been for many years distinctively and exclusively a manufacturing district well suited and appropriate for manufacturing purposes extending for several miles above and below the appellee company’s furnaces and mills. That the district at the top of the bluff where appellants’ properties are located is a residential locality and has been subject more or less to annoyance from smoke and dust arising from the furnaces below.

That the blast furnaces of the appellee company represent a cash investment of 15,000,000 and in them and incidental thereto are imployed 10,800 persons, who are paid in wages monthly, 1500,000. That between March, 1898, and May, 1901, the three Eliza furnaces were improved, enlarged and rebuilt in accordance with modern and improved plans and equipped with modern and improved appliances and improvements; that they are the largest known in the iron business with a producing capacity of 500 tons daily, and a daily consumption of 4,000 tons of ore. That consequent upon “ slips ” occasioned by encrusting ore in the stack of the furnace, dust always escapes from blast furnaces. That on the top of each of the furnaces are explosion or expansion doors for the purpose of permitting the generated gas to pass into the open air; that the dust complained of is carried by the wind upon the properties of the appellants, the amount depending upon the force of the wind and the explosion. That in the manufacture of pig iron the iron ores used are known as “Old Range” and “Mesaba” ores, the former being comparatively free from dust. That the Old Range ores are almost exhausted, the output not being sufficient to permit of the exclusive use of the same in the manufacture of pig iron and in a short time none will be in the market. That the mines which control these ores are practically controlled by one company, a competitor of appellee company, and their cost is seventy-five cents per ton more than the Mesaba ores; that the latter ores have been used in all furnaces of the district in making pig iron since 1892, upon which date to 1902 the amount of the same shipped to lake ports has increased from 5,000 tons to 12,000,000 tons in 1902. That for seven or eight years appellee company has used in its furnaces thirty per cent of these ores, which is less than was generally used in the blast furnaces in the same district and at the present time uses about twenty-three per cent. That the appellee company has been diligent in its efforts to find means and adopt appliances and inventions which will prevent the escape of dust from its furnaces and that up to the present time no appliance has been found that will effectually prevent or reasonably diminish the escape of the ore dust from the blast furnaces when slips occur. That while there was a deposit of dust the same only became serious about July, 1901, and since then the dust has been coming largely upon appellants’ property. That its effects are not only annoying but injurious; that it chokes rain conductors, discolors fabrics and paints, and injures carpets and curtains; that it is destructive of fruit and shade trees and has depreciated the value of the properties of the appellants to the extent of twenty-five or fifty per cent.

Thus upon the one side is a business started many years ago which has been steadily developing until it has reached a very great magnitude. With its increase its appliances have been improved and its blast furnaces enlarged and these have been the natural growth of its business. It has managed its business with a due regard as far as practicable for those who lived near the district within which its blast furnaces were located. It has been diligent in the effort to obtain appliances and inyentions designed to avpid as much as possible any annoyance that might arise from smoke, dust or gases. With the Old Range ores, because of their coarseness the dust and gases were thrown out on the recurrence of slips, but with the Mesaba ores the dust and gases thrown out have been increased very largely, but not to an extent to be necessarily a nuisance per se. The supply of the Old Range ores has been gradually approaching exhaustion and is practically controlled by a competitive conc'ern and the requirements of the business compel appellees to use Mesaba ores and the amount used is about twenty-three per cent. Its use is clearly legitimate in the conduct of its large business. The necessity for the use of such ores becomes apparent upon a consideration of the enormous growth of their use, from 5,000 tons at one period to 12,000,000 tons within a comparatively short period.

The facts show that the inability of the appellee to use such ores would practically operate as a prohibition of its business and thus upon the one side a decree restraining appellee from such use would so impair its capacity to do business that it would produce disaster affecting a large manufacturing interest involving the welfare of an army of employees and be productive of irreparable damage. Upon the other side the damage that Avould arise from the continuance of that business by a refusal to make a decree would be that the rain conductors upon appellants’ houses might still be choked somewhat and their fabrics and paints discolored and their carpets and curtains injured. That they still might have some difficulty in removing the grease stains from their garments and paints and their shade trees and fruit trees, if such be of value amid the smoke of Pittsburg might be destroyed and their property might be depreciated from twenty-five to fifty per cent of its value. Such latter damage, however, being directly to the property itself is clearly ascertainable and cannot well be classed as irreparable.

The facts thus marshalled present an accumulation of injurious irreparable results likely to occur from a decree against appellee that should in view of those capable of reparation that might occur to appellants, constrain a chancellor to refuse to make it. While a judge has no right to be influenced in the determination of a case merely because of the effect of a decision, yet Avhen it is a matter of grace, guided by sound discretion, he may well in the exercise of such discretion, wisely consider some of the consequences that may result from his action and manifestly so when a manufacturing district on the one side and a residential locality on the other are involved and the learned trial judge very significantly says :

“ While the extent of the injury resulting to plaintiffs from the dust can be ascertained, the injury resulting to defendants by a decree cannot be estimated. Such a decree would practically mean the shutting down of not only its furnaces, but also its iron and steel works, representing together a capital of at least $60,000,000, and the employment of nearly 11,000 persons. The effect of a restraining order will not be confined to the defendant company, because, if it is unlawful for defendant company to use Mesaba ores it is also unlawful for every other furnace in this county to use those ores; an injunction therefore in this case would affect injuriously every one of the thirty-seven blast furnaces in Allegheny county, and their allied industries, with capital as shown by the industrial statistics of the commonwealth, aggregating $400,000,000 and employing 60,000 persons. As there are not sufficient “ Old Range ” ores mined to supply the demand if the exclusive use of these ores be required, a decree which makes the use of Mesaba ores impossible means the shutting down of every blast furnace in the county within a year, as the supply of u Old Range ” ores will be exhausted within that time. What that would mean to the people of this city and county needs no discussion. The damage would be inestimable.”

A decree operative of destructive results so far-reaching and extensive as thus indicated, certainly might well warrant the deduction that in it there was not a suspicion of that “ matter of grace ” held to be an element in the determination of a chancellor in cases of this character. Pittsburg is a monument to the progress and activity of the manufacturing interests and her achievements in that direction have made her one of our most conspicuous cities. Judicial restriction that would limit these activities might well be regarded as inimical to her best interests in the direction of progress, and where judicial action is based upon “ matter of grace ” guided by wise discretion, it should not be unnecessarily narrowed, but should be, to an extent as far as may be practicable and legal, broadened in a way most wise for the best form of progress and the highest standard of development.

I am of opinion that the decree of the court below dismissing the bill should be affirmed.


source: Caselaw Access Project

author: Mr. Justice Bbown,

license: Public Domain

text:
    Carter, Appellant, v. Ridge Turnpike Company.

      Evidence — Presumption of payment — Turnpike companies — Eminent domain — Damages .for land taken.

    In an equitable ejectment brought against a turnpike company to compel the payment of damages for land taken by it under its right of eminent domain, if the action is not instituted until more than twenty years have elapsed from the time the land was taken, the burden is upon the plaintiff to affirmatively prove that the damages were not paid. After such lapse of time there is a presumption that they were paid, which the plaintiff must overcome.
    Argued Feb. 22, 1904.
    Appeal, No. 81, Jan. T., 1903, by plaintiff, from judgment of Superior Court, Jan. T., 1902, No. 52, reversing judgment of C. P. Lackawanna Co'., Nov. T., 1899, No. 763, in case of Pulaski P. Carter, Marvin P. Carter and Amelia M. Kennedy v. Ridge Turnpike Company.
    Before Dean, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Appeal from Superior Court. See Carter v. Ridge Turnpike Co., 22 Pa. Superior Ct. 162.
    From the record it appeared that an ejectment was brought in the common pleas to recover a strip of land in the first ward of the city of Scranton, which had been taken in 1872 or 1873 by the defendant, and used as a part of its road.
    In the court of common pleas judgment was entered for plaintiff. On appeal to the Superior Court the judgment was reversed.

      JSrror assigned was in reversing judgment of the common pleas.

      8. B. Price, for appellants.

      Everett Warren, of Willard, Warren Knapp, for appellee.
    March 28, 1904:
   Opinion by

Mr. Justice Bbown,

In 1872 or 1873, about twenty-seven years before this ejectment was brought, the Ridge Turnpike Company took possession of the land in controversy, and has ever since been in continuous possession of it, using it as a part of its road. There is nothing, as found by the court below, “ to show by what proceeding or under what circumstances it entered into possession.” While this is true, the statute provided the two ways by which it could take possession of land “ necessary ” to it “in the prosecution of ” its works.” For no other purpose than that of necessity, mentioned in the statute, was the company authorized to hold land, and hence for no other purpose could it acquire the same by purchase or otherwise. The two ways of acquiring land were by purchase or by the exercise of the right of eminent domain: Act of January 26, 1849, P. L. 10. The ninth section of the act provides: “ That no part of this act shall authorize the taking of any property by such company, unless the same be previously paid for, or adequate security given to the owners for the payment thereof.”

It is to be presumed, then, that the right to occupy this land for turnpike purposes was acquired in one of these two ways. The contention of the appellants is that it was not acquired by purchase, but by the right of eminent domain, and, as it has not been paid for, payment of the damages sustained by the taking of it can be enforced in this proceeding, which is to be regarded, as it was treated by the court below, as an equitable ejectment. Speaking of the purpose for which the suit was brought, the court said: Nor is it, as we understand it, the purpose of the plaintiffs to attempt to actually take from them the use of the strip of land in question. The action is brought by them to compel payment of damages -for the taking of the land.” On the argument before us this was practically the position taken by counsel for appellants. If the land was taken under the right of eminent domain, as contended by appellants, and they are, under the authority of Oliver v. Pittsburg, etc., Railway Co., 131 Pa. 408, the proper parties to bring this suit, there can be no question about their right to recover the damages sustained, if the same have not been paid, for no statute of limitations can bar their constitutional right to actual compensation for the land so taken from their ancestor : Hannum v. Borough of West Chester, 63 Pa. 475; Wheeling, Pittsburg & Baltimore Railroad Co. v. Warrell, 122 Pa. 613; Keller v. Harrisburg, etc., Railroad Co., 151 Pa. 67; Wheeling, Pittsburg & Baltimore Railway Co. v. Cleland, 37 Legal Int. 466. But, while this is true, there is a rule of evidence with which the appellants have not complied. More than twenty years had elapsed befpre this equitable ejectment was instituted, and in it there can be no recovery unless the money to enforce the payment of which it was brought has not been paid. With a continuing right to collect the same, barred by no statute and defeated by no adverse possession, there is, nevertheless, the presumption, after twenty years from the time the right to the damages accrued, that they have been paid. The rule that, after the lapse of twenty years, mortgages, judgments and every species of security for the payment of money are presumed to be paid is unbending, universal and invariable. It is applicable both at law and in equity, in the common pleas and the orphans’ court: Van Loon v. Smith, 103 Pa. 238; Lash v. Von Neida, 109 Pa. 207; Biddle v. Girard National Bank, 109 Pa. 349; Breneman’s Appeal, 121 Pa. 641. As this rule arises from public policy, there is no reason why it should not apply to a case like the present, for it is practically a proceeding for the collection of money for damages sustained, the right to which accrued more than a score of years ago, and the original parties to the transaction out of which this right grew have died or passed away. Such a proceeding is sustained as a means of quickening the action of a corporation in making payment of the damages it has occasioned by taking the land for its corporate purposes, and not as a means of placing the owner of the same in possession of it, for it would be inequitable to do so after he has permitted the corporation to use it and to make expenditures upon it: Oliver v. Railway Co., supra.

The contention of the appellants, sustained by the common pleas, is, that the burden was upon the defendant to show that the land had been paid for. This would be so if twenty years — the period unbendingly fixed as raising a presumption of payment — had not passed before any steps were taken against the appellee. Notwithstanding the lapse of this time, the fight to recover has not been extinguished, if, as a matter of fact, the damages have not been paid. But the rule of evidence to which even the commonwealth is subject (Ash’s Estate, 202 Pa. 422) is, that those acting only after twenty years must affirmatively show that fact. What would not have been a burden on those before the twenty years, becomes so thereafter; and what would have been required of the defendant before that time it is not called upon to prove after. In Wheeling, Pittsburg & Baltimore Railway Co. v. Cleland, supra, relied upon bjr the appellants, and in Wheeling, Pittsburg & Baltimore Railroad Co. v. Warrell, supra, cited by the lower court, more than twenty years had elapsed between the taking of the land and the institution of proceedings to recover for the damages sustained, but it affirmatively appeared in each case that they had not been paid.

We affirm the judgment of the Superior Court on the ground that the presumption of payment of the damages had not been overcome by the plaintiffs, and not; for the reason given by that court, that the turnpike company had acquired title by adverse possession. The same learned judge who wrote the opinion said, in Covert v. Pittsburg, etc., Railway Co., 18 Pa. Superior Ct. 541: “ It is well settled that a railroad company entering unlawfully is not absolved from the obligation to make compensation by reason of its possession for twenty-one years.” On appeal to us we approved this: Covert v. Pittsburg, etc., Railway Co., 204 Pa. 341. What is true of a railroad company, possessing the right of eminent domain, is equally true of a turnpike company, enjoying the same right.

Judgment affirmed.


author: Mr. Chief Justice Mitchell,

text:
    Frankfort Marine, Accident & Plate Glass Insurance Company v. Witty, Appellant.

      Contract — Insurance against loss by negligence — Consideration—Fraud.
    An insurance company insured a firm of manufacturers against legal liability for negligence in their mills. The limit of the policy was $5,000. Subsequently an employee recovered from the insured a verdict of $9,000 for personal injuries. The verdict being thought excessive, the question of a reduction, or a new trial was considered by the parties, with the result that the insured undertook to pay four-ninths of whatever sum should be finally paid to the injured employee, either by way of compromise, or upon another verdict.. The litigation then proceeded, and finally resulted in á settlement for $3,500. The insurance company paid this amount, and brought suit against the insured to recover four-ninths thereof. Held, that the agreement was based upon sufficient consideration, and that the insurance company was entitled to recover.
    In the above case it appeared that on the day after the verdict the insured and an agent of the insurance company met to discuss the matter, and the latter after reporting that he was advised by counsel that the amount was excessive, volunteered the opinion that a new trial could only be had by the same counsel who had tried the case, and that a release of the company by the insured on the payment of the full amount of the policy would not protect the former from the claim of the injured employee on the verdict. The agent was not a lawyer, his statements were not made in the presence of counsel, nor were they represented as coming from counsel. The insured could have consulted their own counsel, but as he was out of town, they yielded to the urgency for a speedy decision of the matter, and made the agreement. Held, that there was nothing in the case which a jury could have been permitted to find was fraud which vitiates the contract.
    Argued Jan. 14, 1904.
    Appeal, No. 181, Jan. T., 1903, by defendants, from order of C. P. No. 4, Phila. Co., March T., 1902, No. 1515, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Frankfort Marine, Accident and Plate Glass Insurance Company v. Charles H. Witty and Gustav Rumpf, trading as Charles H. Witty & Co.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Appeal from judgment for want of a sufficient affidavit of defense.
    From the record it appeared that the plaintiff had insured the defendants against legal liability for negligence in their bleaching mill. The limit of the policy was $5,000. Subsequently an employee sued the defendants for the loss of his right arm, and recovered a verdict against them for $9,000. The day after this verdict was rendered an agent of the plaintiff and the defendants met and discussed the matter, and the following correspondence resulted:
    “ Philadelphia, Pa., January 11th, 1902.
    “ Messrs. Charles H. Witty & Company,
    “ Gentlemen: A verdict of nine thousand ($9,000) dollars having been rendered yesterday in favor of John DeBleyker, Jr., against your firm in court of common pleas No. 5, for a personal injury, and we having under our policy assumed of the verdict the sum of five thousand ($5,000) dollars, and it being thought advisable for the benefit of us both that a motion for a new trial, for reduction of verdict and if necessary an appeal to the Supreme Court should be made, and it being possible that at some stage a settlement would be judicious, we have to-day talked the matter over with you and reached the following conclusion:
    “ The case to be litigated by us or compromised with the consent of your firm, and upon the conclusion of the litigation in either manner the total amount, including the costs and expenses of conducting the litigation, which must be paid either by way of compromise or in satisfaction of a judgment, shall be paid by us and yourselves in the following proportions: The Frankfort Marine, Accident and Plate Glass Insurance Company to contribute five-ninths of the total and the firm of Charles H. Witty & Co. to contribute four-ninths thereof.
    “ Please advise us if this letter correctly expresses our understanding.
    “ Very truly yours,
    “ Leeds, McClellan & Co.,
    “ General Agents The Frankfort Marine,

      “ Accident & Plate Glass Insurance Co.”
    After two days deliberation Witty & Co. added the following writing :
    “ January 13th, 1902.
    “ This letter correctly expresses our understanding and we accept your proposition.
    Charles H. Witty & Co.”

      Thereupon the insurance company expended money for counsel fees, depositions, printing, etc., with a result that a new trial was granted and the case was finally settled for $3,500 with the concurrence of Witty & Co. The total expense was $3,638.15 which was paid by the insurance company and this suit was brought to recover four-ninths thereof, or $1,616.96.
    The court made absolute a rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      William T~. O. Anderson, and William Jay Turner, for appellants.
    In consequence of its election to undertake the defense of the DeBleyker suit, the appellee imposed upon itself the burden of moving for a new trial or of taking an appeal in the event of a verdict or judgment being rendered for the plaintiff in any sum greater than $5,000, the utmost limit of its liability under the policy held by the appellants. In this regard the appellee certainly stood in the same relation to the appellants as an attorney does to a client. It is not only the right, but the duty of an attorney to take and prosecute an appeal from a judgment adverse to his client, if by so doing his client’s interests will be advanced: Grosvenor v. Danforth, 16 Mass. 74; Fire Assn. v. Rosenthal, 108 Pa. 474; Wimer v. North Township Overseers, 104 Pa. 317.
    The appellants were misled as to their legal rights as against the DeBleyker verdict by two false statements of the general agent of the appellee at the interview at which the letter containing the appellee’s proposition was written : Sunbury Fire Ins. Co. v. Humble, 100 Pa. 495; Com. v. Julius, 173 Pa. 322; Enos v. Sun Ins. Co. 67 Cal. 621 (8 Pac. Repr. 379).

      Thomas Teaming, for appellee, was not heard.
    April 11, 1904:
   Opinion by

Mr. Chief Justice Mitchell,

The contract sued upon was entirely clear. The situation of the parties when they made it was this: appellants were held by a verdict of $9,000 in favor of an employee for injuries received through their negligence, and against this liability the appellee was bound to indemnify them to the extent of $5,000, the limit of its policy. The verdict being thought excessive, the question of a reduction, or a new trial, was considered by the parties, with the result of the agreement now sued on, that appellants undertook to pay four-ninths of whatever sum should be finally paid to the injured employee, either by way of compromise or upon another verdict. The consideration to both parties was the chance that the sum each would have to pay in the end, would be less than its proportion of the existing verdict. But there was also a chance the other way, and by the. agreement appellee assumed an unlimited obligation for five-ninths of what should be ultimately recovered by the injured employee, although that might exceed its whole liability under the policy. A compromise settlement was in fact effected with the injured employee, and under the agreement the appellants escaped with less than half the amount for which they had been liable when it was made. It comes with very ill grace from them now to try to repudiate it.

It is argued that the appellee was already bound to go on and endeavor to get a new trial and therefore there was no consideration for the present contract. A sufficient consideration has already been shown. But there was no such obligation to go further. By its policy it was bound to indemnify the appellants up to the amount of the policy, and on the other hand it had the entire management and control of the suit and could terminate its liability at any time by paying the appellants the full amount of the policy. Whenever therefore it became convinced that further proceedings would be useless or against its interests it was not bound to go on, but could stop with the present certainty rather than risk the contingent future.

The charge of fraud in the making of the contract hardly requires notice. The day after the verdict the appellants and the agent of the appellee met to discuss the matter, and the latter after reporting that he was advised by counsel that the amount was excessive volunteered the opinion that a new trial could only be had by the same counsel who had tried the case, and that a release of appellee by appellants on the payment of the full amount of the policy would not protect the former from the claim of the injured employee on the verdict. The agent was not a lawyer, his statements were not made in the presence of counsel nor were they represented as coming from counsel. They were simply opinions expressed by a layman upon matters of law, during the negotiations leading to the new agreement. Appellants could have consulted their own counsel, and in the affidavit of defense, say they desired to do so, but he being out of town they yielded ■ to the urgency for a speedy decision of the matter and made the agreement. In doing so they acted on their own judgment, and there is nothing shown in the case which a jury could have been permitted to find was fraud which vitiates the contract.

Judgment affirmed.


author: Per Curiam,

text:
    Durst, Appellant, v. Bromley Brothers Carpet Company.

      Negligence — Master and servant — Dangerous employment — Non-suit.
    In an action by a wife to recover damages for the death of her husband employed in the defendants carpet mill as scourer, a non-suit is properly entered where the evidence shows that the deceased voluntarily undertook to help to run a line of hot water pipe over a vat of boiling caustic soda, and that the primary cause of the accident was the slipping of the pipe out of the deceased’s hands thus throwing the weight on1 him and knocking him into the vat.
    Submitted Jan. 14, 1904.
    Appeal, 258, Jan. T., 1908, by . plaintiff from order of C. P. No. 5, Phila. Co., March T., 1902, No. 1668, refusing to take .off non-suit in case of Theresa Durst v. Bromley Brothers Carpet Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Ralston, J.
    At the trial it appeared that on February 26, 1902, the deceased who was head scourer in defendants’ carpet mill, was employed after hours in helping to run a line of hot water pipe along the ceiling of the room in which he worked. He placed a plank over a vat of boiling caustic soda, and while standing on the plank the pipe slipped out of his hands, and he was knocked into the vat and killed. The court entered a compulsory non-suit which it subsequently refused to take off. Plaintiff appealed.

      Error assigned was in refusing to take off non-suit.

      Walter Stradling and Henry J. Scott, for appellant.

      Morton Z. Paul, for appellee.
    April 11, 1904:
   Per Curiam,

The plaintiff’s husband voluntarily undertook to help in a work of manifest danger. That alone would bar a recovery. But in addition to this, it appears that the primary cause of the accident was the slipping of the pipe out of the deceased’s hands, thus throwing the weight on him and knocking him into the vat. If this was not the result of his own carelessness in handling the pipe, it certainly did not show any negligence on the part of defendants.

Judgment affirmed.


author: Mr. Justice Dean,

text:
    Laird, Appellant, v. Union Traction Company.

      Negligence — Release—Evidence•—Province of court and jury.

    In an action against a street railway company to recover damages for personal injuries, where the defendant sets up a written release which the plaintiff alleges was executed by him when he was prostrated and unconscious from his injury, the court is justified in giving binding instructions for defendant, where four disinterested witnesses, including a physician, testify that the plaintiff was conscious at the time that the paper was read to him, that he comprehended its contents, accepted the money consideration and signed it, and it also appears that the plaintiff used the money weeks after with full knowledge of where it came from, and made no offer to return it before bringing suit.
    Argued Jan. 20, 1904.
    Appeal, No. 205, Jan. T., 1904, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T., 1902,'No. 2991, on verdict for defendant in case of George Irving Laird v. Union Traction Company.
    Before Mitchell, C. J., Dean, Fell, Beown, Mesteezat, Pottee and Thompson, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries. Before Willson, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      William G-. Keir, for appellant,
    cited: McCaw v. Union Traction Co., 205 Pa. 271.

      Thomas Learning, with him Russell Duane, for appellee,
    cited: Penna. R. R. Co. v. Shay, 82 Pa. 198; Rose v. West Phila. Pass Ry., 3 Sup. Ct. Dig. 59; Wojciechowski v. Spreckels’ Sugar Refining Co., 177 Pa. 57; De Douglass v. Union Traction Co., 198 Pa. 430; Ogden v. Phila., etc., Traction Co., 202 Pa. 480; Gibson v. Western New York, etc., R. R. Co., 164 Pa. 142.
    April 11, 1904:
   Opinion by

Mr. Justice Dean,

The plaintiff George Irving Laird, aged twenty-five and married, fell under a street car on defendant’s railway in Philadelphia on November 21, 1901, and was very seriously injured. He was immediately taken to the Pennsylvania Hospital, where the next day, I. W. Brodt, acting for the defendant company, called upon him and gave him $150, on payment of fidfich Laird executed -fin the presence of four subscribing witnesses a formal release to the company of all claim for damages by reason of the injury, stating in the release that by reason of the speed of the car he was thrown to the ground and thereby the car passed over his foot. After his recovery and leaving the hospital he brought this suit against the company, averring, that his injury was caused by the negligence of the company. The company answered that plaintiff’s injury arose from his own negligence in attempting to get on a moving car, and further offered and read in evidence the release. The learned Judge was of opinion, that the release in view of the evidence, was an effectual bar to recovery, and so instructed the jury. We now have this appeal by plaintiff, assigning for error the peremptory instruction of the court,

In support of his appeal appellant argued, 1. There was no evidence that plaintiff received the money paid by the company, 2. There was ample evidence, that at the time the release was physically executed plaintiff was prostrated and unconscious from his injury, therefore was incapable of executing a valid release and the evidence bearing on this question should have been passed upon by the jury. We will not waste words quibbling as to the actual payment of the money. It was counted out to plaintiff by the agent, then counted by plaintiff himself and put by him under his pillow; he either gave it himself to his wife the afternoon of the same day, or it was given her by one of the hospital nurses. At any rate, it is not denied that she received it and used it in the family; therefore, as an indisputable fact, $150, the consideration for the release, was received by him and with his full knowledge used for his benefit.

As to the second point of appellant’s argument, that Laird did not possess mental capacity to execute a valid release, it seems to be based upon a misapprehension of the relative functions of the court and jury with reference to such an instrument. A chancellor has still some duties to perform in determining what effect it should have on an issue like the one before us; equity has precisely the same power and the samé duty in a suit between an individual and a corporation, as between natural persons. While it is clear, that plaintiff suffered a grievous injury, it is by no means clear he súfféred a wrong from defendant and it is, perhaps, also clear that he is needy and defendant is wealthy. This arouses sympathy. But sympathy is emotion, not equitj'; nor is equity a chancellor’s mere notions of what is equality, on the contrary, it is a system both in England and this country, of well established law. No rule of equity is better established in this state, than that to set aside a written instrument the evidence must be “ clear, precise and indubitable ” whether the allegation be fraud practiced by the beneficiary under it, or incapacity on the part of him who executed it. Penna. Railroad Co. v. Shay, 82 Pa. 198, and the many cases following it. In this case incapacity is alleged ; it is argued that at the time Laird signed the release, he was in a state of unconsciousness. It is attested by four disinterested witnesses, three qf whom were called and testified at the trial. Dr. Brooks, the hospital surgeon, who was attending plaintiff, testified, that he saw him on three separate occasions on the day the release was executed and that he was “ all right mentally,” that he, the surgeon, gave express permission to the agent of the company to see and talk to him. Two of the nurses and Brodt of the subscribing witnesses testify, that the release was read to him, that he seemed to comprehend its contents, then accepted the money and signed it. There is not a particle of evidence of fraudulent representation or even of undue persuasion to induce him to sign. There was some slight evidence on the part of plaintiff that he was in a state of unconsciousness but nothing more. The plaintiff himself does not say he did not read or sign it, but that he does not remember doing so. How could a chancellor in the face of the long line of our own well established cases have submitted such evidence to the jury to answer whether it was “ indubitable ? ” Clearly it was not. As is said by the late Chief Justice Green, in Wojciechowski v. Spreckels’ Sugar Refining Co., 177 Pa. 57, “No man’s deed for the house he lives in would be safe if it could be destroyed on such evidence.”

Counsel for appellant rely upon the decision in McCaw v. Union Traction Co., 205 Pa. 271, as ruling this case. There was evidence of fraud in procuring the release in that case; here there is none, only some slight evidence of incapacity on the part of plaintiff when he signed the release but nothing nearly sufficient to meet the decided weight of the evidence adduced by defendant, showing full mental capacity.

Besides, there being no fraud practiced in obtaining the release, the plaintiff ratified it by using the money weeks after with full knowledge of where it came from and made no offer to return it before bringing suit.

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


author: Mb,. Justice Potteb, Mr. Chief Justice Mitchell

text:
    Forst’s License.

      Liquor law — License—Signatures to petition — Signature of partnership— Certificate of twelve electors — Amendment.
    The certificate “ signed by at least twelve reputable qualified electors of the county,” required by the Act of June 9, 1891, sec. 5, P. L. 257, to be annexed to the petition for a liquor license, is fatally defective where five of the signatures are those of partnerships or trading companies, and this defect cannot be cured by amendment.
    Mitchell, C. J., and Thompson, J., dissent.
    Argued Feb. 2, 1904.
    Appeal, No. 69, Oct. T., 1904, by Morris Forst, from judgment of Superior Co., April T., 1904, No. 14, reversing order of Q. S. Allegheny Co., March T., 1908, No. 61, granting a wholesale liquor license in re Application for Liquor License by Morris Forst.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Appeal from Superior Court. See 28 Pa. Superior Ct. 600.
    The opinion of the Supreme 'Court states the case.

      Error assigned was the judgment of the Superior Court.

      W. B. Rodgers, with him Alex. Grilfillan, for appellants.
    The amendment should have been allowed : Fisler’s License, 26 Pa. C. C. Rep. 381; Consumer’s Brewing Co.’s License, 7 Pa. Dist. Rep. 193; Donmoyer’s License, 9 Pa. C. C. Rep. 303; Sherry’s License, 12 Pa. C. C. Rep. 129; Penna. & N. Y. R. R., etc., Co. v. Bunnell, 81 Pa. 414.

      M. H. Stevenson, for appellees.
    The signatures of twelve reputable qualified electors are essential to jurisdiction : Faulkner’s License, 2 Pa. C. C. Rep. 86; Grant’s License, 2 Pa. C. C. Rep. 87: Heery’s License, 4 Kulp, 57.
    In all proceedings purely statutory the jurisdictional facts must appear of record, and the terms of the act be strictly followed, or no jurisdiction attaches : Cambria St., 75 Pa. 357 (1874), Gordon, J. (road proceeding in quarter session); Snyder’s App., 36 Pa. 166 (1860), Strong, J. (partition in orphans’ court); Bennett v. Hayden, 145 Pa. 586; Torrance v. Torrance, 53 Pa. 505.

      A majority of the lower courts have decided against the right to amend: Donmoyer’s License, 9 Pa. C. C. Rep. 304; Sherry’s License, 12 Pa. C. C. Rep. 129; Heery’s License, 4 Kulp, 57; Hoyniak’s License, 9 Kulp, 368; Porter’s License, 4 Kulp, 356; Miller’s License, 13 Pa. Superior Ct. 272; Bailey’s License, 5 Pa. Dist. Rep. 172. Two cases are cited on the other side : Fisler’s License, 26 Pa. C. C. Rep. 381; Consumer’s Brew. Co.’s License, 7 Pa. Dist. Rep. 193.
    April 11, 1904:
   Opinion by

Mb,. Justice Potteb,

The legislature has defined in the act of June 9, 1891, the precise mode in which the court of quarter sessions shall proceed in the granting of licenses for the sale of liquor at wholesale. That mode is by petition containing certain specified statements. It is the facts set forth in the petition which settle the question of jurisdiction. If the provisions of the statute are not'followed in all matters of substance the petition is a mere nullity and cannot be considered, for the jurisdiction of the court of quarter sessions to grant licenses is purely statutory.

The fifth section of the act referred to requires that there shall be annexed to the petition a certificate signed by at least twelve reputable qualified electors of the county in which said liquors are to be sold, setting forth certain representations, and asking for the issue of the license as prayed for. And section three of the act requires that this petition shall be on file with the clerk of the court of quarter sessions of the proper county for at least three weeks before the first day of the session of the court at which the same is to be heard.

In the present case, the certificate attached to the petition did not contain the signatures of twelve reputable qualified electors of the county, but it only purported to be signed by seven individuals, while the remaining signatures were those of business firms or partnerships, who were obviously not qualified'electors. No attempt was made to amend the petition in this respect until the time of the hearing. It was then manifestly impossible to comply with the provisions of the statute, which required the petition, accompanied by the certificate of twelve reputable electors, to be on file with the clerk for-at least three weeks before the first day of the session of the court.

We can only regard this defect as one of substance, and not merely of form. The amendment is therefore an attempt to correct an omission which is vital to the existence of the proceedings. Without the amendment, the petition is lacking in the presentation of jurisdictional facts which are essential to the exercise of any authority by the court in the premises. To allow the amendment to be made after the time in which, under the statute, the petition must be filed, would be to give the court jurisdiction of a case of which it had no jurisdiction except by virtue of the amendment itself. It cannot be thus made to relate back and confer jurisdiction. The court not having acquired any jurisdiction by means of the original filing of the petition, there was nothing to amend, and the whole proceeding remained a nullity.

It would hardly seem necessary to cite authority for the proposition that a court without jurisdiction has no authority to allow an amendment to pleadings in the suit. But as the proceedings in a case of this character are wholly statutory, the line of decisions in other statutory proceedings, such as election cases and those relating to the filing of mechanics’ liens, presents the principle which is applicable and controlling in this case. Thus in Williams v. Johnson, 16 W. N. C. 223, which was affirmed by this court, Rice, P. J., after considering the authorities, concludes his opinion as follows: “ The proceedings to contest an election are purely statutory. The court cannot acquire jurisdiction except in the way and within the time prescribed by the act of assembly.

If in fact the court did not have jurisdiction when this petition was filed, and has it not now by reason of the fact that the affidavit was not made by the requisite number of qualified electors, it is clear both from reason and authority, that, after the time for instituting a contest has elapsed, we cannot supply this omitted prerequisite necessary to confer jurisdiction by amendment.” In affirming this judgment, this court said: “ While amendments of the petition may be allowed for some purposes, yet when the attempt is to give jurisdiction after the time for initiating a contest has expired, it should not be permitted. An affidavit of the requisite number of qualified electors is essentially necessary to give jurisdiction. It must be made within the time prescribed by the statute. If not so made, it is fatal to the proceedings, and the defect cannot be cured by amendment thereafter.”

The present chief justice of this court, when sitting in the common pleas, said, in re Division Inspector, 11 Phila. 380, 382: “No precedent has been found, and I believe none exists, for the allowance of an amendment in a vital point necessary to bring the petition within the jurisdiction of the court, after the allotted time for filing a petition has passed.”

In mechanics’ lien cases, it is clearly settled that amendments going to the jurisdiction will not be allowed after the time allowed by the statute for filing has expired. In Knox v. Hilty, 118 Pa. 430, Justice Green said (p. 434) : “ It is almost unnecessary to say that we have repeatedly decided that amendments introducing new parties cannot be made after-the statutory period has expired.” This ruling was followed in McFarland v. Schultz, 168 Pa. 634, and in Grier v. Northern Assurance Co., 183 Pa. 334.

We are clear that the omission which it was here sought to supply by the amendment, was of matter essential to the petition, and necessary to establish jurisdiction, and it could not, therefore, be made after the time for its filing, as fixed by the statute, had passed.

This appeal is therefore dismissed, and the judgment of the Superior Court is affirmed.

Mr. Chief Justice Mitchell

dissenting:

The business of selling intoxicating liquors is not unlawful, nor is the act regulating the granting of licenses a criminal or even a penal statute requiring a rigid enforcement of the letter. On the contrary it is a statute applying to the everyday business of the community, and one which particularly requires a common sense business construction. Judged by that standard, the signature of a firm is the signature of all the members of it, and for all useful purposes in the requirements of the statute, it should be so accepted. I do not concur therefore in the view that the petition in the present case was lacking in the necessary jurisdictional facts. I would therefore reverse the judgment and reinstate and affirm the judgment of the quarter sessions.

Mr. Justice Thompson concurs in the dissent.