text:
    The Lewisburg Bridge Company, Appellant, v. The County of Union and The County of Northumberland.

      Jurisdiction — Subject-matter of suit — Statutory remedy — Viewers—Intercounty bridges — Franchises—Condemnation.
    1. Objections to the jurisdiction are of two classes, between which there is a clear and well-defined distinction; first, those relating to the authority of the court over the subject-matter, and secondly, those relating to its authority over the parties. Objections of the first class cannot be waived or jurisdiction obtained by acquiescence.
    2. Section 13 of the Act of March 21, 1806, 4 Sm. L. 326, which provides: “In all cases where a remedy is provided, or duty enjoined or anything directed to be done by any Act or Acts of Assembly . . . ., the directions of the said Acts shall be strictly pursued; no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases further than shall be necessary for carrying such Act or Acts into effect,” applies to ordinary civil suits, and where the controlling act of assembly provides a special remedy, such remedy must be pursued.
    3. The plaintiff, a bridge company, owned a bridge erected to take the place of a destroyed bridge under the special Acts of March 23, 1865, P. L. 602, and February 19,1868, P. L. 177, the ninth section of the latter providing: “All property and franchises held by the said company at the site of the old bridge shall continue to be held in the same manner as if the bridge had been re-erected.” The latter bridge was located about 500 feet north of the old bridge, part of the abutments and the tollhouse of which remained. Subsequently the two counties whose boundary line was the river constructed a free bridge at the site of the old bridge, in the construction of which there was used stone from the abutments of the former bridge. It also appeared that the contractor caused the old tollhouse to be broken into, and at a later date, the building was put up at public auction by the county commissioners and sold. The parties were unable to agree as to the amount of damages sustained, if any. The bridge company brought an action in trespass against the two counties to recover damages for violation of their franchise and for the taking of the stone, the tollhouse, and the land upon which it stood. Held, that the Act of May 6,1897, P. L. 46, as amended by the Act of May 13, 1901, P. L. 191, providing in such a case for compensation to be made to the owners of a former bridge for the taking or impairment of their franchises or the taking of piers, approaches, tollhouses or other property by the appointment of viewers to assess damages, furnished a special remedy which the plaintiffs must pursue, and the common pleas has no original jurisdiction over the subject-matter.
    4. In such a case the fact that the defendants contended that the property claimed for had long since been abandoned and had no value, was not such a denial of the claimant’s title as would estop the defendants from demanding their right to have the case tried according to the method prescribed in the statute.
    5. The ninth section of the Act of February 19, 1868, did not allow the plaintiff a continuing franchise at the site of the old bridge as well as at the site upon which the new bridge was to be constructed.

      Constitutional law — Act of May IS, 1901, P. L. 191 — Eminent domain — Securing of damages — Municipal corporation — Ascertainment of damages — Interpretation of act — “Shall” as meaning “may.”

    6. The act of May 13, 1901, is not unconstitutional, either because there is no express provision for paying or securing the damages before the taking, or because it is wanting in providing a proper method for the ascertainment and payment of damages or for the concurrent action between the counties in relation thereto, since the first is unnecessary. where the power of eminent domain is exercised by municipal corporar tions, the taxing power being sufficient security, and as to the second the act distinctly declares that damages shall be paid, fixes the proportion in which they shall be paid and provides machinery for ascertaining them, leaving only the details for the courts and administrative authorities to work out.
    7. The provisions of the act of 1901, “If the said Commissioners of the said counties shall neglect or refuse to act as herein provided, upon the petition of fifty property owners and taxpayers residing in the city, borough or township in which the bridge is or was located, which petition shall set forth fully all the facts supported by the affidavit of five of said property owners and taxpayers, to the court of common pleas of the counties where located, upon hearing, said court having jurisdiction shall issue a mandamus to said commissioners to proceed as provided by this act,” means that the courts in each of the counties shall have jurisdiction over the commissioners of their own county; that the commissioners are first authorized to use their discretion as to whether or not a bridge shall be built, but this discretion is expressly subject to review by the common pleas of the respective counties; and if on review the court decides that the commissioners, under the facts presented, should exercise their authority for the purpose of the joint construction of an intercounty bridge, that it can compel action by a mandamus. The word “shall” with its context is to be construed as meaning “may.”
    Argued. Feb. 14, 1911.
    Appeal, No. 18, Jan. T., 1911, by plaintiffs, from judgment of O. C. Lycoming Co., June T., 1910, No. 321, on verdict for defendants in case of The President, Managers and Company for erecting a bridge over the west branch of Susquehanna at the Town of Lewisburg, otherwise called the Lewisburg Bridge Company v. The County of Union and the County of Northumberland.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Moschzisker, JJ.
    Affirmed.
    Action in trespass’ to recover damages because of the construction of a riyal bridge erected' under the Act of May 6, 1897, P. L; 46, as amended by the Act of May 13, 1901, P. L. 191. Before Hart, P. J,

      The plaintiff claimed that its franchise was an exclusive. one, and that the erection of a new inter-county bridge had depreciated the value of the franchise. The court below ruled that it was not exclusive and refused to admit evidence offered to show the alleged depreciation. The plaintiff’s bridge was erected under and by authority of the special Acts of March 23, 1865, P. L. 602 and of February 18, 1868, P. L. 177, to take the place of an old bridge which had been destroyed. Section 2 of the latter act provides: “That said company be and are hereby empowered to rebuild said bridge .... at any place within half a mile of the location of the old bridge .... and that the site where the new bridge has been located and commenced, north of where the old one stood, is hereby made valid . . . .” and sec. 9, “All property and franchises held by said company at the site of the old bridge shall continue to be held in the same manner as if the bridge had been there re-erected.”
    The other facts in the case are sufficiently stated in the following abstracts from the charge of the trial judge: “The plaintiff seeks to recover the value of certain stone, .... and also for the value of a certain toll house, and the land occupied by the toll house and leading from the toll house to the Susquehanna river. The plaintiff company is a corporation originally incorporated by Act of ... . March 26, 1814, P. L. 223, in which it was authorized to. erect a bridge from the east end of Market street, in the town of Lewisburg, to the opposite shore; ..... the plaintiff company did proceed and construct a bridge .... upon piers located in the river and abutments at either end. . . . This bridge continued to be used down to the year 1865, when, on the 17th day of March, of that year, it was destroyed by a flood. In the year 1867, the plaintiff constructed another bridge at a point which is about 400 feet north from the old bridge, at the western side of the river, and a distance of about 200 feet north at the east side of the river. . . . Subsequent to the destruction of this old bridge .... and to the building of the new bridge .... the county of Union and the county of Northumberland constructed a free bridge at the site of the old bridge as located prior to 1865; in the construction of this inter-county bridge there was used .... stone taken from the western, abutment, and it has been testified on the part of the plaintiff that this stone amounted to about four carloads; .... It is my recollection that the testimony showed that there were two carloads used in the construction of ... . the new bridge .... and that the other two carloads were not used in the new bridge, but were used by the contractor. ... It is also shown on the part of the plaintiff that about the time of the commencement of the construction of this new bridge, which was on the 30th of December, 1905, .... the contractor, or those who were interested in clearing the ground for the construction of the new bridge, caused this old toll house to be broken into, and .... at a later date the building was put up at public auction by the Commissioners of Union and Northumberland counties and sold at public sale, and that there was derived from this sale the sum of $56.50, including the foundation and all. It has been testified on the part of the plaintiff by Mr. Wendel that he lived in this house from 1874 down to 1894, and that he had not been in the house from that time down to the sale, but gives it as his opinion that the whole premises, assuming that the plaintiff was the owner of the land on which they were located, were worth about a thousand dollars, and he fixed its market value at about that figure, but also said that considering the building alone he did not consider it of much value. ... Now this is substantially the testimony on the part of the plaintiff that relates to the subject of our inquiry . . . .; it presents at least two questions in reference to the stone — one as to the amount of stone that was actually taken and made use of by the defendants .... and the other as to the value thereof. The only witness that I recall that undertook to testify as to the value of this stone said that such stone had a value of about one dollar and forty cents a perch, but stated further that in place they did not possess much if any value. . . . The value of the building, considering it as an independent proposition, must depend upon what it was worth at that place and at the time it was taken. If the land is considered with it, then of course the measure of value would be the value of the house as it stood there at the time and any other property connected with it.” Here the trial judge refers to the testimony going to show the circumstances under which the toll house was erected and whether or not it stood upon ground which could be classed as a public street, after which he said: “If the jury believe from the evidence that plaintiff never had any other title to this land, and there is no evidence here of any grant of title to any piece of ground connected with this bridge at the western end, then when it ceased to use this ground for bridge purposes, or when it ceased to use it for the purpose of maintaining a toll house there for that bridge, the land reverted back to either the original owner or to those by whom it was dedicated, and the plaintiff would have no right to damages for the land itself in this action. ... If you believe that this land was public property, then we say tó you that when the plaintiff bridge company ceased to use this land for the necessary purposes of a bridge at that place it had no longer a claim in the soil or to this easement that it may have up to that time enjoyed. . . . The next question you come to is, if you find this was public land there, a street or a dedicated plot of ground, and that plaintiff had abandoned, it for bridge purposes, what value had this toll house simply as a dwelling as it was used at the time of its being taken away. That is a question entirely for the jury under the evidence, and as you decide that so will you determine its value.” In answering requests for charge, the court informed the jury that the plaintiff was entitled to recover what they might determine to be the worth of the toll-house, and also the value of the stone from the old bridge which was used in the construction of the new inter-county bridge; but if they believed from the evidence that the property referred to had no real value, there could be no recovery.
    Verdict and judgment for the defendant. The plaintiff appealed.

      Errors assigned were rulings on evidence, charge of the trial judge and answers to requests for charge which raise the questions referred to in the opinion of the Supreme Court. Last assignment: overruling motion of plaintiff’s counsel to withdraw a juror because one of the defendant’s witnesses of his own accord, while the judge was off the bench, but while counsel for both sides were in the court room, indicated to the jury that a photograph before them showed the house in which the witness was born.

      Andrew A. Leiser and C. Larue Munson, of Candor and Munson, with them Erwin M. Beale, and Andrew A. Leiser, Jr., for appellants.
    — The court had jurisdiction of the subject-matter: Lafean v. York County, 20 Pa. Superior Ct. 573; Jeannette Boro. v. Roehme, 9 Pa. Superior Ct. 33; Byers v. Byers, 208 Pa. 23; Magee v. R. R. Co., 13 Pa. Superior Ct. 187; Lycoming Fire Ins. Co. v. Storrs, 97 Pa. 354.
    The defendants are estopped to set up any defense based on the character of their action by their denial of any title in plaintiff to any property or franchises at the site of the old bridge: McMasters v. Carothers, 1 Pa. 324; Bradfords v. Kents, 43 Pa. 474; Eell’s Est., 6 Pa. 457; Gordon v. Inghram, 32 Pa. 214.
    Defendants have waived any right to such defense by going to trial and taking risk of the event of the suit: Daley v. Iselin, 212 Pa. 279.
    Plaintiff had his election and could waive the statutory remedy: Brown v. Powell, 25 Pa, 229; Davis v. Southwest Penna. Pipe Lines, 34 Pa. Superior Ct. 438, 223 Pa. 56; Rabe v. Shoenberger Coal Co., 213 Pa. 252.

      W. H. M. Oram, with Albert W. Johnson, John F. Oram and James B. Krause, for appellee.
    — The plaintiff is not entitled to recover in this form of action. White v. McKeesport Boro., 101 Pa. 394; McKee v. Pittsburg, 7 Pa. Superior Ct. 397; Moyer v. Kirby, 14 S. & R. 162; Criswell v. Clugh, 3 Watts, 330; Hawkins v. Pittsburg, 220 Pa. 7.
    July 6, 1911:
   Opinion by

Mr. Justice Moschzisker,

The appellee contends that the court below had no jurisdiction, and for that reason, if for no other, the judgment for the defendant should not be interfered with. To which the appellant replies that the question of jurisdiction is not in the case, since none of the assignments of error raise the point.

Aside from whether any error was committed in arriving at the judgment, was the result complained of inevitable under the law? For if it was, the judgment will not be disturbed. This inquiry necessarily involves the underlying jurisdictional question, in the proceedings as instituted and tried, could any judgment other than the one rendered have been sustained? If this is determined against the appellant, then all subordinate issues are out of the case and the appeal must be dismissed. The question of jurisdiction is before us to this extent at least.

“Objections to the jurisdiction are of two classes between which there is a clear and well-defined distinction, first, those relating to the authority of the court over the subject-matter, and, secondly, those relating to its authority over the parties. Objections of the first class cannot be waived or jurisdiction obtained by acquiescence:” Com. v. Barnett, 199 Pa. 161, 177; English v. English, 19 Pa. Superior Ct. 586.

The present action was brought in trespass to recover direct and consequential damages to the property and franchises of the plaintiff company. The Act of May 6, 1897, P. L. 46, as amended by the Act of May 13, 1901, P. L. 191, provides: “That the county Commissioners of the several counties of this Commonwealth are hereby-authorized to ... . rebuild .... any bridge over any stream or river forming the boundary line between two counties, when the same is on the line of a public highway or deemed necessary for the use of the traveling public, .... which has been destroyed by ice, flood or otherwise, at any time, or which has been or may be abandoned, and the site or location and piers and abutments no longer used by the owners of said bridge, and the same rebuilt .... on another site, or on new foundations at another point. And the said commissioners of the respective counties are hereby authorized to take charge of and rebuild and maintain jointly such bridge as a county bridge, and the costs and expenses of such joint reconstruction shall be paid by the said counties respectively in the proportion of the population thereof as ascertained at the last census . . . .; provided, further, That just compensation shall be made to the owners of the former bridge for the taking or impairment of the rights, and franchises of such owners, in the same manner as is provided in this Act for ascertaining the compensation due for the piers and abutments.” The original act provides, sec. 4, “When the said commissioners have taken any piers, abutments, approaches, tollhouses or other property necessary for the rebuilding or maintenance of any bridge aforesaid, and are unable to agree with the owners upon the amount of the damages they may sustain by reason thereof, the Court of Quarter Sessions of the County in which said property is situate shall, upon petition of any party in interest, appoint three disinterested freeholders of such county to view the property and assess the damages, if any, which said owners may sustain by the taking of the same. ...” The section further provides a right of appeal to the common pleas, and to the Supreme Court. Section 3 of this act likewise provides that the county commissioners of the respective counties “are hereby authorized to borrow any sum of money, not exceeding the constitutional limitations, .... and issue- bonds therefor, . . . ."for the purpose of carrying into effect the provisions of the act. And the amendment of .1901 provides that the commissioners may be compelled to .act- by mandamus. The new intercounty bridge was constructed subsequent to and under the provisions of this act of 1897 as amended in 1901.

Section 13, -of the Act of March 21, 1806, 4 Sm. L. 326, 1 P; & L. Dig. 107, provides: “In all cases where a remedy is provided, or duty enjoined or anything directed to be done by any Act or Acts of Assembly, .... the directions of the said Acts shall be strictly pursued; no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such eases further than shall be necessary for carrying such Act or Acts into effect." In White v. McKeesport Boro., 101 Pa. 394, the action was in trespass to recover damages suffered in the grading of a public street. In affirming a judgment for the defendant we said, “The legislature has provided a special remedy for that kind of injury by the Act of May 24, .1878, P. L. 129, and that form of proceeding must therefore be adopted in all cases coming within its terms. The Act provides that in all cases where the proper authorities .... may .... change the grade .... of any street .... thereby causing damage to the owner or owners of property abutting thereon in case they fail to agree with the owner for the proper compensation for the damages so done . . . ., the Court of Common Pleas of the proper county upon application .... shall appoint viewers, who shall proceed to assess the damages in the mode pointed out by the Act. This being the method established by law for the recovery of damages for changing grades .... it must be strictly pursued in accordance with the provisions of the Act of March 21,1806, . . . .”

While it was at first doubted that the doctrine of the act of 1806, supra, applied to ordinary civil suits, this point has long been decided in the affirmative: Wike v. Lightner,' 1 Rawle, 289; and there are a host of authorities in Pennsylvania applying the rule where the controlling acts of assembly furnish a remedy to recover damages to property by means of a board of viewers, from McKinney v. Monongahela Navigation Co., 14 Pa. 65, to Deer v. Sheraden Boro., 220 Pa. 307. The controlling act of assembly in this case, as wé have seen, provides that just compensation shall be made to the owners of the former bridge and that the proceedings to recover such damages shall be before a jury of view. "The Act having provided a special remedy, such remedy must be pursued:” Power v. Ridgway Boro., 149 Pa. 317, 318. This necessarily means that the court below had no jurisdiction over the subject-matter of the present suit in an action of trespass.

The plaintiff’s contention that the defendant waived the issue of jurisdiction is not well taken. The defendant neither expressly nor by its conduct at any time waived this point, but on the contrary questioned the jurisdiction of the court in its plea, by a motion for a nonsuit, and by requests for binding instructions (see Wiggins v. Columbian Fire-Proofing Co., 227 Pa. 511, 516). This is a case where the jurisdictional point goes to the authority of the court over the subject-matter, and therefore the appear^ anee to defend the action cannot be taken to have given jurisdiction by acquiescence. In substance, this was ruled against the contention of the plaintiff in Stork v. Philadelphia, 195 Pa. 101. There a claim was made before a jury of view for damages caused to property in the construction of a city improvement, an appeal was taken to the common pleas, and upon a verdict there rendered judgment was entered for the plaintiff and an appeal taken to this court. The evidence showed that the injury complained of was not the necessary consequence of the improvement, but that it arose through the negligent performance of the work. In reversing, we held that the liability declared upon could not be enforced in the form of proceeding adopted, and that the city was not estopped from raising the issue of jurisdiction, for the viewers could not be given authority to pass upon a question of liability which the law had not put within their jurisdiction.

We are constrained to hold that if the plaintiff suffered any injury by reason of- the construction of the new inter-county bridge, the only body that had original jurisdiction to adjudicate a claim for the damages arising therefrom was the tribunal named in the act of assembly under and by authority of which the bridge was constructed, and the court below had no jurisdiction to entertain plaintiff’s action.

But the plaintiff contends that the act in question is unconstitutional and void, and that since the constitution gives a right to damages for property taken, injured or destroyed, the present action could be maintained under the rule that “When a right exists and no adequate remedy is provided, it may be enforced by an action on the case:” Chester County v. Brower, 117 Pa. 647, 656. We cannot agree that the act should be set aside as unconstitutional legislation. The fact that there is no express provision in the statute for paying or securing the damages before the taking or injury, cannot be urged as a valid basic objection. In Keene v. Bristol Boro., 26 Pa. 46, 47, dealing with this subject, we said, “Ordinarily the power of taxation which is given to municipal corporations is adequate security to the citizen for his property which may be taken .... for public use.” In McClinton v. Railway Company, 66 Pa. 404, it is pointed out that while private corporations invested with the right of eminent domain must pay or secure payment before the taking or injury, this strict rule does not apply to the state or to municipal corporations; as to them, it is only necessary to provide the means of payment in the act of assembly authorizing the improvement. And in Barrett v. Nealon, 119 Pa. 159, 171, we said, “It has been repeatedly held that the power of taxation in a municipal corporation is sufficient security for property taken by such corporation; hence, it logically follows that it is sufficient for property injured.”

We are not impressed with the appellant’s contention that there is no proper method provided in the act for ascertainment and payment of damages or for concurrent action between the counties in relation thereto. The act provides that, "the costs and expenses” of the joint construction of the bridge are to be paid by the "Counties respectively, in the proportion of the population thereof,” and it further provides for the payment of damages for property taken, injured or destroyed and "authorizes the county commissioners of the respective counties” to raise the money therefor by the issuance of bonds, if necessary. These damages, when adjudicated and awarded to one injured, would constitute part of the “costs and expenses” of the bridge. Of course the construction of the bridge could not take place without the concurrent action of the two counties. Proceedings must be had in each of the counties affected before any final action can be taken which would cause such damages; and if these proceedings are not concurrent, those concluded in the first county would have to be subject to or await the action of the other county. The act provides that the court of quarter sessions of the county in which any tangible property taken or destroyed is situate, shall appoint viewers to assess the damages. By this method the courts of the two counties could, working concurrently, arrive at the total cost and expense of such items of damage. The act also provides that the damage to franchises suffered by the owners of the former bridge shall be ascertained in the same manner; and this presents the question as to which court shall adjudicate damages of this character. The preferable rule would probably be that the court of the county in which the headquarters of the corporation are situate, or the court wherein the first proceedings are had, should be intrusted with this duty; but these are matters of detail which the legislature has left for the courts and the administrative authorities to work out. While it would have been better had all such detail been provided for in the legislation, we cannot declare the statute invalid because of this omission; for the act distinctly declares that damages for injuries shall be paid, fixes the proportions in which they shall be paid, and provides machinery for ascertaining them.

The statute further provides that the commissioners of the several counties can jointly build the bridges over streams forming the boundary line between two counties, and “if the said commissioners of the said counties” (the two counties affected in any particular instance) shall neglect or refuse to act, then proceedings may be taken to compel action. It is contended by the appellant that this provision is in itself sufficient to invalidate the act, because it is revolutionary and an encroachment upon the functions of the courts. The full text of the provision is as follows: “If'the said commissioners of the said counties shall neglect or refuse to act as herein provided, then, upon the petition of fifty property owners and tax-payers residing in the city, borough or township in which the bridge is or was located, which petition shall set forth fully all the facts supported by the affidavit of five of said property owners and tax-payers, to the court of common pleas of the counties where located, upon hearing, said court having jurisdiction shall issue a mandamus to said commissioners to proceed as provided by this Act.” We fail to see anything objectionable in the provision. We construe it to mean that the courts in each of the counties shall have jurisdiction over the commissioners of their own county. The commissioners are first authorized to use their discretion as to whether or not a bridge should be built; but this discretion is expressly made subject to review by the common pleas of the respective counties. While the discretionary power of a public official cannot ordinarily be controlled by mandamus, there is nothing in the law to prevent the legislature from ordaining such control when conferring the power, and that is precisely what they did in this particular instance. It is not necessary to construe the statute as a legislative encroachment upon judicial powers; we can never assume that the legislature intended such encroachment, and that construction should not be placed upon an act of assembly unless the words employed leave no other choice. The language of the section is that the fifty property owners shall present a petition fully setting forth the facts (it does not say what facts) and that “upon hearing” the court “shall issue a mandamus.” The word “hearing” means “the session of any court, or of an adjunct thereof, for considering the proofs in a case:” Anderson’s Law Dictionary, 506; “The receiving of facts and arguments thereon for the sake of deciding correctly:” 4 Words & Phrases, 3237. If the act had provided without more that upon the petition of the fifty property owners the court must issue the mandamus, the appellant’s argument would have much force, but it does not so provide; on the contrary, it particularly leaves the ascertainment of the facts and the decision of the cause to the court. In other words, the statute makes the action of the county commissioners subject to review by the common pleas; and if upon such review the court decides that the commissioners, under the facts presented, should, as the representatives of the county, exercise their authority for the purpose of the joint construction of an inter-county bridge, then it can compel action by a mandamus. The use of the word “shall” is consistent with this construction, and the phrase “shall issue a mandamus” simply designates the writ which shall be used for the purpose of compelling county commissioners to act. It is to be assumed that before a court would issue the extraordinary writ of mandamus, in order to compel the. county commissioners to enter into such an arrangement with the officials of another county, it would first ascertain as a fact the condition of each of the counties and see that the division of the financial burdens was properly arranged. We conclude that the act can be sustained as a constitutional and workable piece of legislation.

The act in question has been before the courts on several occasions. It was held to be constitutional in Seabolt v. Commissioners of Northumberland County, 187 Pa. 318, when attacked as special legislation and because of alleged defects in title. In Com. v. Attorney General et al., 13 Pa. Dist. Rep. 521, a proceeding concerning the bridge in this case, the amendment of May 13, 1901, was upheld as not in conflict with the constitution, while another amendment was there declared void. When the act was again before us, in connection with the same bridge, in 197 Pa. 110, we said: “The county commissioners are authorized, not required, to rebuild destroyed and abandoned bridges. The discretion as to whether it is necessary .... and for the best interests of the county to do so, is, in the first instance, in them, but it is reviewable by the court.....and the action of the court appears to be intended to be final.”

It is true that the original act of 1897, before its amendment by the act of 1901, uses the word “may” in connection with the phrase “issue a mandamus,” instead of the word “shall;” but, as already explained, we construe the latter word, with its context, to have the same meaning as the former. It is also true that the facts found in 197 Pa. 110, so located the old bridge that the case was taken out of the act of 1897; but the amendment of 1901 makes the statute much more extensive in its operation, and the case as presented at the trial now under review was within the act as amended.

The act of 1897 as amended especially covers damages of the character claimed. As we understand the record, there was no denial that the plaintiff had owned the original bridge, that the commissioners had taken the old piers and toll house in the construction of the new bridge, or that they had been unable to agree with the plaintiff as to the amount of the damages sustained, if any. Hence the case falls squarely within the jurisdictional conditions for the appointment of viewers as provided in the act, and the fact that the defendants contended that the property claimed for had long since been abandoned and had no value, was not such a denial of the claimant’s title as would estop the defendants from demanding their right to have the case tried according to the method prescribed in the statute.

We cannot look into the record of the mandamus proceedings under the act of 1897 for the alleged irregularities whose existence the plaintiff asserts; those proceedings are not here for review, and we must assume the judgments entered therein to have been founded upon sufficient bases of fact. On the whole, we fail to see anything to take the case out of the special remedy prescribed in the act of assembly.

Since the court below had no original jurisdiction to try the case as instituted, the only judgment possible was one for the defendant. We might, therefore, conclude this already over lengthy opinion with that statement. But, with the thought of possibly ending the litigation, we have examined all the other points suggested by the specifications of error and ably argued by counsel, and while we do not conceive it necessary to make specific reference to the assignments, we will say that we have not been convinced of any reversible error in the rulings of the learned court below.

In conclusion we will notice briefly the principal rulings complained of. The grant to the bridge company must be construed most favorably for the public, and it cannot be said that the court below fell into error in holding that such grant could not be viewed as an exclusive franchise. The words used do not require such a construction, and so to hold would partially deprive the commonwealth of its sovereignty over the extension of roads and highways made necessary by the increase in population. Nor do we feel that error was committed in the conclusion that the ninth section of the Act of February 19, 1868, P. L. 177, did not allow the plaintiff a continuing franchise at the site of the old bridge as well as at the site upon which the new bridge was to be constructed. The authority given by the act was not to build an additional bridge!, but to rebuild the old bridge at a new site, and we construe the section in question to mean that all of the plaintiff company’s franchises for the bridge at the old site were preserved to it for the new bridge, and not that such franchises were to continue to exist at the old site. The plaintiff company’s abandonment, for bridge purposes, of the old site for more than forty years indicates that it likewise so construed the statute. The issues as to the old tollhouse and its value, and as to the value of the other tangible property claimed by the plaintiff, appear to have been fully and fairly treated in the charge of the trial judge. If it were an open question whether or not this case should be sent back to the court below for a retrial, the incident complained of in the last assignment of error would not move us so to do.

The appeal is dismissed at the cost of the appellant.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    City of Scranton v. George C. Genet, et al., Appellant.

      Municipal claims — Loss of claim — Scire facias — Statutory ’ period— Act of June 4,1901, P. L. 864-

    1. The Act of June 4,1901, P. L. 364, which act provides a complete and exclusive system regulating the creation of liens for municipal improvements and prescribes the method for their enforcement, does not contemplate indefinite prolongation of the lien of a claim filed through successive revivals by writs of scire facias. No provisions for the revival of the lien of the claim can be found in the act.
    2. The first scire facias provided for in sec. 10 of the act is process by which the claim may be reduced to judgment; which judgment must be revived by writ of scire facias, “to revive the judgment.” Under this provision, if the claim be not filed within the time prescribed, or if it be not prosecuted by scire facias within five years of the time of filing, it will be wholly lost.
    3. Where in an action on a municipal lien, a scire facias issued within the statutory period proved abortive, not having been served according to law, and the period closed with the return of the writ, the lien not only was at an end, but in the language of the act the claim was “wholly lost” beyond possible recovery; and the fact that the defendant caused a general appearance-do be entered to an alias scire facias issued after the expiration of the period could not supply the existence of a legal claim on which such a scire facias could properly issue, without which any action of the court would be a mere nullity.
    Argued Feb. 20, 1911.
    Appeal, No. 180, Jan. T., 1910, by intervening, defendant, from judgment of C. P, Lackawanna Co., No. 468, March T., 1907, affirming report of referee in case of City of Scranton to use v. George C. Genet and Augusta G. Genet, intervening defendant.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Exceptions to report of referee, S. B. Price, Esq.
    The opinion of the Supreme Court states the case.

      Error assigned was among others overruling exceptions to report of referee and in directing judgment to be entered for the plaintiff.

      Everett Warren, of Warren, Knapp & O’Malley, with him F. K. Tracy, for appellant.
    — The first writ of scire facias was a nullity for all purposes and must be treated as though it had never been issued; that the municipal lien therefore expired by efflux of time before the alias scire facias was issued; that that alias scire facias was also a nullity; that the voluntary appearance of the defendant had no greater effect than a valid service of the alias scire facias could have had; that the municipal lien was a hen in rem and once lost was lost forever and that no judgment could be entered thereon: Wistar v. Philadelphia, 86 Pa. 215; Ferguson v. Quinn, 123 Pa. 337; Simons v. Kern, 92 Pa. 455; Philadelphia v. Cooper, 212 Pa. 306; Scranton v. Stokes (No. 2), 28 Pa. Superior Ct. 437; Philadelphia v. Ward, 16 W. N. C. 76.

      David J. Davis, city solicitor, for appellee.
    — Defendant waived any defect in the scire facias: Scranton v. Stokes, 28 Pa. Superior Ct. 434; Scranton v. Koehler, 36 Pa. Superior Ct. 95; Lycoming Fire Ins. Co. v. Storrs, 97 Pa. 354; Skidmore v. Bradford, 4 Pa. 296; Beltzhoover Boro. v. Beltzhoover’s Heirs, 173 Pa. 213.
    July 6, 1911:
   Opinion by

Mr. Justice Stewart,

For a determination of this case we need not look beyond the Act of June 4, 1901, P. L. 364. That act within itself provides a complete system regulating the creation of the liens for municipal improvements, and prescribes the method of their enforcement. It repeals all former acts, whether general or special, which were inconsistent with it. It would not be profitable to consider these various acts or the decisions of the court with respect to them, since the acts were not parts of a general system but each had its own peculiar features, and no one that we have examined was exactly like the act of 1901 with respect to that feature upon which we rest our conclusion. A careful study of the later act is convincing that it does not contemplate indefinite prolongation of the lien of a claim filed through successive revivals by writs of scire facias; and that the scire facias provided for in the act is not for purpose of revival of the lien filed, but for enforcement of the claim, with extension of lien as an incident to a delayed scire facias. Section 10 of the act reads as follows: “Upon each tax or municipal claim a writ of scire facias, in the form hereinafter set forth, must issue within five years from its filing, and verdict must be recovered or judgment entered on the scire facias within five years after it is issued. Final judgment must' be entered on the verdict within five years after its recovery. After judgment is entered, it must be revived by writ of scire facias to revive the judgment; or by judgment thereon within each recurring period of five years. If a claim be not filed within the time aforesaid, or if it be not prosecuted in the manner and at the times aforesaid it shall be wholly lost.” The above extract from the statute contains everything therein relevant to the question in hand. We have here a provision that if the claim be not filed within the time prescribed, or if it be not prosecuted in the manner aforesaid (by scire facias), and at the times aforesaid, (within five years from filing), it shall be wholly lost. The distinction in the office of the first scire facias provided for in the act and any which may be subsequently resorted to, is apparent; the first is process by which the claim may be reduced to a judgment, and all controversy with regard to it ended; with judgment once obtained the lien thereafter attaches to it and not to the claim. No provision for revival of the lien of the claim can be found in the act; but after judgment is entered the judgment must be revived by writ of scire facias “to revive the judgment.” The marked difference between this procedure and that provided for in the earlier mechanic’s lien law, now repealed, is significant. We call attention to it since in both the proceeding is in rem. The general mechanic’s lien law of June 16, 1836, P. L. 695, provided in sec. 10, after declaring the lien of the debt for which the claim was filed should expire at the end of five years from the day of filing the lien: “Unless the same shall be revived by scire facias, in the maimer provided by law in case of judgments; in which case, such lien shall continue in like manner for another period of five years, and so from one such period to another, unless such lien be satisfied, or the same be extinguished by a sheriff’s sale or otherwise according to law.” Here was express provision that the lien could be revised by writs of scire facias so often as was necessary in the same manner as a judgment. The writ there was not simply for the enforcement of the lien, but for its preservation. That the difference between the provision in that act and the provision in the general municipal lien'act was not due to accidental omission from the latter, but was fully intended, becomes apparent upon examination of the general mechanic’s lien act of June 4, 1901, which superseded and repealed the act of June 16, 1836. The later act, passed the same day as the general municipal claim act, changed the procedure in cases of mechanics’ liens, and brings it into exact accordance with the procedure provided for in the municipal lien act. This later mechanic’s lien act in sec. 10, after providing that a writ of scire facias must issue within a certain period, proceeds: “and a verdict must be recorded or judgment entered on the scire facias within five years after it is issued. Final judgment must be .entered on the verdict within five years after its recovery. After judgment is entered, it must be revived by a writ of scire facias to revive the judgment, or any judgment thereon, within each recurring period of five years. If a claim be not filed within the time aforesaid, or if it be not prosecuted in the manner and at the times aforesaid, it shall be wholly lost.” We derive from this a manifest purpose to restrict the debatable period with respect to the claim. The provision that the claim shall be wholly lost if it be not prosecuted in the manner and at the times aforesaid, that is to say, by writ of scire facias issued within five years to bring it to judgment, indicates clearly that the right to revive pertains not to the lien but the judgment obtained thereon. The proceeding is purely statutory, and we can introduce nothing into the remedy which is not expressly provided by the statute. Not only is there lacking here any express authority for a scire facias to revive the lien of the claim, but we think it clear that none was intended.

In the present case a scire facias was issued within the statutory period. But not having been served according to the requirements of the law it proved abortive. Unfortunately for the claimant it issued so closely to the expiration of the five year limit, that with the return of the writ the period had closed. Had it issued a term earlier this fatal effect could have been avoided by the abandonment of that particular writ, and the issuing of another within the period. Admittedly the writ returned was so defective that a judgment thereon could not be supported. The case stood therefore as though no writ had issued within the statutory period: Phila. v. Cooper, 212 Pa. 306. An alias writ of scire facias was sued out after the expiration of the limit, and it is upon this writ that the present contention hangs. The appellee, alleging that she was the sole owner of the premises against which the claim was filed, and that her husband, who was named in the claim and writ as owner, was without interest in the premises, filed her petition asking that she be allowed to intervene. This being allowed, a general appearance for-her followed. When the alias writ issued not only was the' lien at an end, but in the language of the act the claim was “wholly lost” beyond possible recovery. The claim was never enforcible except by a scire facias, and the right to this remedy was gone. If the first scire facias, because of defective service, was a nullity, for the reason that it was not sufficient to support a judgment, the second or alias scire facias must fall under like condemnation. Nothing remained of the claim on which any such writ could issue. The purpose of the scire facias was to warn the owner and bring her into court to make known her defense if any she had; not to answer to a personal demand against herself, but to show, if she could, why her property should not be under judicial subjection to a municipal claim. Her appearance certainly cured all mere defects in matters of form and irregularities in service if there were any; but it did not and could not supply the one fact, the existence of which was absolutely necessary to the validity of the proceeding, and without which the action of the court would be a mere nullity, namely, the existence of a legal claim upon which a scire facias could properly issue. The right of the court to hear and determine questions arising in connection with the filing and enforcing of claims for' municipal improvements, is purely statutory. The right of the municipality to enforce the collection of any such claim is also statutory. When the record fails to disclose the existence of- such a claim, or what is equally decisive, when facts are brought to the attention of the court which establish that no such claim exists, there is a lack of power in the court to hear the case even though the defendant consent; and it follows that a judgment rendered in such case is void for want of jurisdiction. With this question disposed of in favor of appellant, the other questions raised on the appeal do not call for consideration. The refusal of the defendant’s request for affirmance of the following point: “Under the evidence in this case there can be no recovery,” is the subject óf the first assignment of error. This point should have been affirmed. This assignment of error is sustained, and judgment is reversed.


text:
    Husvar, Appellant, v. The Delaware, Lackawanna and Western Railroad Company.

      Negligence — Master and servant — Case for jury — Unsafe place to work — Evidence—Defendant’s evidence.

    1. In an action to recover damages for personal injuries caused by the fall of a hopper in which the plaintiff was working, the case is for the jury where, after plaintiff has rested with simply showing an unexplained accident, the defendant assumes the unrequired burden of acquitting itself of negligence and in so doing adduces evidence disclosing such a defective condition of the timbers supporting the hopper as would warrant a reasonable inference that the accident complained of occurred as a result of such condition.
    2. The prime object of a trial where the facts are disputed is to elicit the truth, and all the evidence is for the consideration of the jury, whether it makes for or against the party calling the witness.

      3. In such a case a judgment for the defendant n. o. v. will be reversed where it appears that the plaintiff, a carpenter, was engaged in removing the lining of a coal hopper which was part of a coal breaker and washery; that he had received the assurance of the foreman of the particular job that the hopper was secure and safe, and all shored up, and that in a short time thereafter the hopper fell to the ground carrying the plaintiff with it and injuring him severely; where it further appears by the evidence of the general carpenter foreman of all the work, called for the defendant on cross-examination, that he had general direction of the work of this particular washery, that he had known by personal examination for “a day or two” that the timbers which supported the hopper were “in bad condition,” and that he wanted the hopper torn out in order to remove these timbers.
    Argued Feb. 20, 1911.
    Appeal, No. 191, Jan. T., 1910, by plaintiff, from judgment of C. P. Lackawanna Co., Nov. T., 1907, No. 1,075, entered n. o. v. for defendant in case of James C. Husvar v. The Delaware, Lackawanna & Western Railroad Company.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass for personal injuries. Before Heydt, P. J., specially presiding.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      M. A. McGinley, for appellant.

      Everett Warren, of Warren, Knapp & O’Malley, with him J. H. Oliver and D. R. Reese, for appellee.
    July 6, 1911:
   Opinion bt

Mr. Justice Stewart,

This was not a case calling for the application of the rule res ipsa loquitur. When the plaintiff rested he had simply shown an unexplained accident. Had a nonsuit been then ordered, plaintiff would have had no ground to complain. But the case proceeded, and the defendant company assumed the unrequired burden of acquitting itself of negligence in connection with the accident, by attempting to show that the plaintiff’s own negligence was the sole producing cause. The result on submission to the jury was a verdict for the plaintiff, which on motion was set aside and judgment non obstante entered for the defendant. It is now contended on part of appellant that the evidence introduced by the defendant fully supplied what was lacking in that offered by the plaintiff, and that the case upon all the evidence presented a triable question. The facts as developed by plaintiff’s testimony are as follows: The defendant company was engaged in operating a coal breaker and washery in connection therewith. The latter was a frame structure about sixty feet in height, used for the purpose of washing, screening, dividing and otherwise preparing the coal for market. The coal is carried by elevators to the top of the washery where it is run through screens and shakers, and from there dropped into a hopper from which it is discharged through a chute at the bottom upon other screens and shakers beneath. This hopper into which all the coal passes is angular at its surface, about twenty feet in length and about twelve in width, with sides inchning to the chute at the bottom. The whole structure was undergoing repairs at the time of the accident, and was not then being operated. Among other repairs required was the renewing of the hard wood lining within the hopper. The plaintiff, a carpenter, for about a week preceding the accident had been engaged in this kind of work on the elevator shaft through which the coal was carried to the top of the washery. He was then assigned, with another, to make like repairs to the hopper —the removal of the old fining and the replacing of it with new. While so employed, other workmen were engaged in the general repairing of the structure including the supports to the hopper, with a view of strengthening it. He and his associate had proceeded so far with the work inside the hopper that three or four of the hard wood boards of the fining'had been torn up, and discharged through the chute at the bottom of the hopper, when the men below complained and called them to desist and come down. Plaintiff went down and inquired of one Cadugan, the foreman of this particular job, and the person who had directed plaintiff to work in the hopper, whether the hopper was secure and a safe place to work in. He was told that it was all right, that it was all shored up, the foreman expressing his own willingness to work in it. With this assurance plaintiff resumed work in the hopper. In a very short time thereafter the entire hopper, according to the testimony of one of plaintiff’s witnesses, fell to the ground, carrying plaintiff with it and injuring him severely. The plaintiff offered no evidence explaining the collapse, and developed nothing from which the true cause could be reasonably inferred. A nonsuit might well have followed, but it was not ordered nor was it asked for. The defendant company proceeded with its case, and called among other witnesses one William H. Bryant, who was the general carpenter foreman of all the defendant company’s work in that district. This witness having testified that Cadugan had charge of the work on this particular washery under his general direction, and that he had directed him to get men to tear out the hopper, was asked on cross-examination why he had directed the hopper to be torn out. His reply was: “To put in new timber.” He was then asked, “What was the matter with the timber under the hopper?” To this he replied, “They were getting a little dozzy on the edges.” Asked to explain his meaning, he said, “the timbers had bad edges” and that he wanted the hopper torn out in order to remove the timbers. These questions and answers followed: “ Q. Why did they need removing? Because they were in bad condition? A. Yes, sir. Q. Those timbers you wanted to tear out were the ones that support the hopper? A. Yes, sir. Q. For how long a time did you know that the timbers in that Diamond washery that supported the hopper were in bad condition? A. A day or two. Q. Had you examined them? A. Yes, sir. Q. And you saw they were in bad condition? A. I saw them.” Had the plaintiff’s case disclosed such condition of the timbers supporting the hopper as this witness testified to, it is not open to question that quite enough would i have been shown to warrant a reasonable inference that the collapse occurred as the result of such condition, in the absence of all evidence of other cause. A nonsuit on that state of the evidence could not have been sustained; the case would necessarily have been for the jury. How was it any less for the jury because of the fact that this evidence was elicited from a witness called on behalf of the defendant? The evidence was for their consideration whether it" made for or against the party calling the witness. If it made for the plaintiff, it was entitled to quite as much weight as though it had been introduced by him. The prime object of a trial where the facts are disputed is to elicit the truth; that is what the jury is to seek after and find if they can upon a consideration of all the evidence submitted to them. Here the first question was, What caused the collapse in which plaintiff was injured? The fact that it was not discoverable from the testimony offered by plaintiff, did not prevent the jury from seeking for the cause in the evidence voluntarily offered by the defendant and submitted to them. It is called to our attention that this witness called by the defendant and who testified to the bad condition of the supporting timbers, attributed the collapse of the structure to the improper methods pursued by plaintiff in removing the lining of the hopper. We need only say that with respect to the condition of the timbers the witness was testifying to a fact, whereas with respect to the cause of collapse he was but expressing an opinion. The one made for the plaintiff, the other against him, but both were for the jury. We are not concerned about the difference in statement between this witness and the plaintiff with respect to the circumstances attending the collapse of the hopper, whether it was total or partial; their disagreement on this point was for the jury. Nor does it concern us to inquire to what extent the witness’s theory of the cause was supported by the evidence he gave. This also was for the jury; but so too was the fact, undisputed, testified to by the witness, that the timbers supporting the hopper were in bad condition. This latter as we have said was sufficient to support a reasonable inference that this caused the accident. This evidently was the inference which the jury derived. The assignments of error are sustained. The judgment non obstante is reversed, and judgment is now entered for the plaintiff on the verdict.


author: Mr. Justice Potter,

text:
    Riefler & Sons, Appellant, v. The Wayne Storage Water Power Company.

      Deeds — Construction—Reservations and exceptions — E'a'sements—Extinguishment — Corporate powers.

    1. The right to make use of the land of another for a precise and definite purpose, not inconsistent with a general right of property in the owner is in legal contemplation an easement or franchise and not a grant of the soil.
    2. The distinction between a reservation and an exception is that a reservation is some new thing issuing out of what is granted; an exception is the withdrawal from the operation of the grant of some part of the thing itself. An exception applies only where the subj ect already exists.
    3. The terms “reservation” and “exception” are often used interchangeably, and the technical meaning will give way to the manifest intent even though the technical term to the contrary be used.
    4. A canal company, the powers of which were limited to the operation of a canal and railroad appurtenant thereto, in 1851 conveyed certain lands by three deeds each containing the following clause: “Excepting out of the premises aforesaid, and hereby expressly reserving to the said .... Canal Company, and their successors and assigns, the absolute and unqualified right to occupy so much of the land as they may consider necessary for a reservoir or reservoirs, . . . ., and to construct a dam or dams for such reservoir purposes and to overflow all the land that they may require for such purposes. Also reserving to the said party of the first part, their successors or assigns, the right at all times hereafter freely and without charge to ... . take .... from the land or premises hereby conveyed, .... all the stones, . . . . or other material .... requisite or convenient for constructing, . . . . or maintaining the said reservoir . . . ., with the right also at any and all times forever of full ingress, egress and regress . . . ., through or from the lands hereby conveyed, .... as fully and as absolutely in regard to all the exceptions and reservations herein made as if this indenture had never been executed, . . . .” This title vested finally in the plaintiff. Subsequently, until 1898, the company used two natural ponds which were upon the land so conveyed as feeders or storage reservoirs for its canal, and at no time used them for any other purpose. In 1898 the canal was permanently abandoned. In 1903 the company executed and delivered to other parties a deed for a portion of the lands described in the former three deeds including the water of the two ponds, excepting and reserving “so much thereof as was conveyed .... by deed dated March 8, A. D. 1851. The interests conveyed by this deed since vested in the defendants a Storage Water Power Company, the powers of which comprise the storage .... of water for manufacturing and other purposes, and for the creation .... of water power therefrom.” Plaintiff brought ejectment for the ponds. Held, the clause in question constituted a reservation of an easement of storing and taking water only as incidental to the maintenance of the grantor company’s canal, under its charter, and when the canal was abandoned the easement was extinguished.
    Argued, Feb. 21, 1911.
    Appeal, No. 277, Jan. T., 1911, by plaintiff, from judgment of C. P. Wayne Co., Oct. T., 1908, No. 158, in case of Reifler & Sons, Incorporated, v. The Wayne Storage Water Power Company.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Reversed.
    Ejectment for lands in Lebanon Township. Before Fuller, J., specially presiding, without a jury.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was in entering judgment for defendant.

      Homer Greene and Bussell Duane, of Duane, Morris & Heckscher, with- them E. G. Mumford, for appellant.—
    The clause was in the nature of a reservation, and not an exception: Kister v. Reeser, 98 Pa. 1; Moffitt v. Lytle, 165 Pa. 173; Sheffield Water Co. v. Elk Tanning Co., 225 Pa. 614; Duross v. Singer, 224 Pa. 573.
    The right created was an easement: Slegel v. Lauer, 148 Pa. 236; Big Mountain Imp. Co.’s App., 54 Pa. 361; Jessup v. Loucks, 55 Pa. 350.
    The canal company could use the easement only for its corporate purpose: Citizens Elec. Co. v. Boom Co., 227 Pa. 448; Thomas v. Railroad Co., 101 U. S. 71; Pittsburg & Lake Erie R. R. Co. v. Bruce, 102 Pa. 23.

      F. P. Kimble, for appellee,
    cited: Whitaker v. Brown, 46 Pa. 197; Craig v. Wells, 11 N. Y. 315; Slegel v. Lauer, 148 Pa. 236; First Methodist Church of Columbia v. Old Columbia Public Ground Co., 103 Pa. 608; Rankin Regular Baptist Church v. Edwards, 204 Pa. 216; Bombaugh v. Miller, 82 Pa. 203; Butz v. Ihrie, 1 Rawle, 217.
    July 6, 1911:
   Opinion by

Mr. Justice Potter,

On March 8,1851, the corporation entitled, The President, Manager & Company of the Delaware & Hudson Canal Company, conveyed by three separate deeds to Russell F. Ford and Thomas H. R. Tracy three tracts of land situated in Lebanon township, Wayne county, Pa., containing in all about 1,164 acres. Each deed contained the following clause: “excepting out of the premises aforesaid, and hereby expressly reserving to the said President, Manager & Company of the Delaware & Hudson Canal Company, and their successors and assigns, the absolute and unqualified right to occupy so much of the land as they may consider necessary for a reservoir or reservoirs, or for any appendages to the same, or for repairing, improving, enlarging or maintaining the same, and to construct a dam or dams for such reservoir purposes and to overflow all the land that they may require for such purposes. Also reserving to the said party of the first part, their successors or assigns, the right at all times hereafter freely and without charge to have, take and use from the land or premises hereby conveyed to the parties of the second part, all the stones, earth, brush or other material of any kind whatsoever requisite or convenient for constructing, improving, altering, repairing, enlarging or maintaining the said reservoir and its appendages and the works incident to or connected therewith, with the right also at any and all times forever of full ingress, egress and regress to and for the said party of the first part, their successors or assigns, by themselves, their engineers, agents or workmen, with their beasts of draught or burden and implements of labor, any or every of them upon, through or from the lands hereby conveyed to the said parties of the second part, as fully and as absolutely in regard to all the exceptions and reservations herein made as if this indenture had never been executed, and without any obligation on the part of the said party of the first part, their successors or assigns, to erect or maintain any bridge or fence on the premises hereby conveyed.” The title to the lands thus acquired by Lord and Tracy, is now vested in Riefler & Sons, Incorporated, the plaintiffs in this case.

Upon the premises conveyed as above stated in 1851, were, and still are, two bodies of water known as Upper Woods Pond, a natural body of water, containing about 80 acres, and Lower Woods Pond, also a natural body of water, but raised considerably by a dam at its outlet, containing about 96 acres. From the year 1851 until 1898, the canal company, acting under the authority of the clause in the deeds above cited, used these ponds as feeders or storage reservoirs for its canal, and at no time used them for any other purpose. In the year 1898, the canal was abandoned, and has remained in a state of abandonment and decay until the present time.

On August 6,1903, the Delaware & Hudson Company, being the corporation which was the grantor in the deeds above referred to (its name having been changed by the legislature of New York, where it had been incorporated), executed and delivered to Alonzo T. Searle and Levi F. Patterson, trustees, a deed for a portion of the lands described in the deeds of Lord and Tracy above mentioned, excepting and reserving “so much thereof as was conveyed by the party of the first part to Russell F. Lord and Thomas H. R. Tracy by deed dated 8th March, a. d. 1851.” The interests thus conveyed to Searle and Patterson, trustees, have since become vested in The Wayne Storage Water Power Company, the defendant in this case. The powers of the Delaware & Hudson Canal Company were limited by its charter granted in New York, and by statute in Pennsylvania, to the operation of a canal and a railroad appurtenant thereto. The powers of the Wayne Storage Water Power Company comprise the “storage, transportation and furnishing of water for manufacturing and other purposes, and for the creation, establishing and furnishing, transmission and using of water power therefrom.”

The present action in ejectment was brought to recover possession of the land covered by the two ponds above mentioned, upon the theory that the clause in the deeds to Lord and Tracy was in the nature of a reservation, and was not an exception, and that being a reservation, it created an easement for the purpose of storing water, which under the corporate powers of the canal company could only be used by it for the supply of the canal, and when its use for that purpose ceased, the easement was extinguished, and the right to unqualified possession of the land became vested in the owner of the fee. The learned trial judge in the course of his decision said: “There can be no doubt that if the deed did create an easement, and if the easement was restricted to that particular . corporate purpose, it has terminated, and plaintiff may recover in this action, the land upon which such easement was imposed.”

The first question thus brought squarely before us for determination is whether the clause in the deeds under consideration constitutes a reservation or an exception. The trial judge held that it was an exception. The distinction between a reservation and an exception is thus stated in 2 Devlin on Deeds, sec. 979: “A reservation is some new thing issuing out of what is granted; an exception is a withdrawal from the operation of the grant of some part of the thing itself.” In the recent case of Sheffield Water Co. v. Tanning Co., 225 Pa. 614, our Brother StEWART said (p. 619): “The essential characteristic of a reservation as distinguished from an exception is, that its subject is something that did not exist before but is created by and grows out of the transaction. An exception applies only where the subj ect already exists. ’ ’ In the opinion in that case it is further shown, that in the deed then under consideration, “nothing was excepted out of the general grant; the deed invested the grantee with the legal title to the whole of the premises described in the grant; it conveyed to the grantee every inch of land falling within the description, whether occupied by dam, reservoir, pipes, tannery or otherwise howsoever, subject only to the right of the grantors, their heirs and assigns, to do those things upon the premises which the grantors had expressly reserved the right to do.”

This language seems to apply precisely to the terms of the present grant. The entire fee is conveyed by the deeds, and only certain rights are reserved to the grantors. The reservation is of “the absolute and unqualified right to occupy” so much of the land as may be necessary for reservoirs and dams, and “the right at all times hereafter freely and without charge to have, take and use from the land or premises hereby conveyed” stones, earth, brush or other material necessary for the construction and repair of these reservoirs, etc. No part of the thing granted is excepted from the effect of the grant, but a new right or interest in the grantors is created, which they retain. It is something which did not before exist apart from the ownership of the land. It is true that in the case at bar, the words “excepting” and “reserving” are both used, and this fact was regarded as significant by the trial judge. No special importance can, however, be attached to the use of both of these words, as they are frequently used together without careful discrimination as to whether an exception or a reservation is intended. This usage is noted in the text-books. Thus in 2 Devlin on Deeds, sec. 980, it is said: “The terms ‘exception’ and ‘reservation’ are often used indiscriminately, and sometimes in a deed what purports to be a reservation has the force of an exception.” And again in 13 Cyc. L. & P. 674, it is said: “The terms ‘reservation’ and ‘exception’ are often used interchangeably, and the technical meaning will give way to the manifest intent, even though the technical term to the contrary be used.” The point is discussed at considerable length in Whitaker v. Brown, 46 Pa. 197, and in Kister v. Reeser, 98 Pa. 1, where it is said that the terms “reservation” and “exception” “are often used in the same sense, the technical distinction being disregarded.”

By reference to the deed, it appears that except for the purpose set forth in the clause of reservation, the right of the grantees to the land described, was not restricted. Upon the other hand, in so far as may have been considered necessary to serve the required end, there was reserved to the grantor, not merely the right to occupy specific parts of the land, but in so far as any physical limitations of the boundaries were concerned, the reservation was indefinite and uncertain.

Our examination of the clause satisfies us that the effeet of the language was to create something new out of what was granted. That is, it created the right to maintain reservoirs upon the land conveyed, and to repaid improve and enlarge them, and to construct dams, and overflow all the land the grantor might require for that purpose, and to enter upon the land and take from it stone, earth, brush and other material requisite or convenient for construction or repair of the reservoirs. This right, as a thing separate and apart from the ownership of the land, was created by and grew out of the transaction between the parties to the deeds, and it did not exist before. The new right in this respect thus created by the transaction was from that time forth to be enjoyed apart from, and in no way dependent upon the ownership of the land. As it was not in existence prior to the making of the deeds, it could not be made the subject of an exception, which must always be of something in existence at the time, as part of the whole of the grant, from which it is excepted.

The facts in this transaction seem to correspond in every particular with the requirements of the legal definitions of a reservation, and to be lacking in the essentials which distinctly define an exception. We are therefore impelled to the conclusion that the clause in question constitutes a reservation. It imposed a servitude upon the property, by which the new owners were restrained from the full and unlimited use of the land, and were obliged to suffer the canal company to do certain things upon the property, which were it not for the burden imposed upon it, the owners would have had the sole right to do. The right to make use of the land of another for a precise and definite purpose, not inconsistent with a general right of property in the owner, is in legal contemplation an easement or franchise, and not a grant of the soil: Boston Water Power Co. v. B. & W. R. R. Corp., 33 Mass. 512. A general definition of an easement and description of its properties, is compiled in 3 Farnham on Waters, .sec. 808, as follows: “An easement is a right in the owner of one parcel of land by reason of such ownership to use the land of another for a special purpose not inconsistent with a general property in the owner. Being an interest in land it must be created and transferred by deed by prescription which presupposes a grant, by an agreement for a conveyance which may be enforced in equity, or by a sale of property with reference to an existing convenience which entitled the grantee to its continued enjoyment. In order to establish an easement the dominant and servient estates must be owned by different persons. . . . This principle applies to drains, flowage rights, and all other uses to which one portion of a tract may be (subjected) in favor of another. The easement may be created by conveyance of the right when transferring property in favor of which it is to exist, or it may be reserved in favor of the grantor.”

There is a class of rights which one may have in the land of another, without their being exercised in connection with other land, and which are known as easements in gross. In these cases there is no dominant tenement. But in easements proper, it is essential that there should be both a dominant and a servient estate; but it is not essential that they should be contiguous. For example, a pew in a church may be appurtenant to a house quite distant from the church: Jones on Easements, sec. 5. In Perrin v. Garfield, 37 Vt. 304, it was held that a dam located a mile away was appurtenant to a mill to which it supplied water. This case was cited in Cady v. Water Works Co., 134 N. Y. 118, where Follett, C. J., said (p. 121): “An easement may be created though the dominant and servient estates are not contiguous.” In the latter case it was held that the right to receive water from a spring located in a village was appurtenant to a lot some distance from the lot upon which the spring was located. In the.present case, the bed of the canal, or the canal property, was the dominant tenement. It was that to which the servitude was due, or for the benefit of which it existed, and for which it was constituted. The Delaware & Hudson Canal Company was confined in the use of this easement to the limits of its corporate purpose, as set forth in its charter.' This would confine the use of the easement, or the right to store and take water, to the needs of the canal; and if the canal was abandoned, then the purpose for which the easement in question was lawfully created,- failed, and the easement was extinguished. “An easement is extinguished when the estate to which it is appurtenant ceases to exist:” Jones on Easements, sec. 843.

The parties here agree that in or about the year 1898, the Delaware & Hudson Canal Company ceased to operate the canal. The water was drawn off; locks, gates and equipment were dismantled, and this condition of general disuse and decay has prevailed to the present time. The court below found the facts in accordance with the agreement, and also found as a conclusion of law that the acts of the canal company constituted a legal abandonment of its canal. It had no right under its charter to use the water from the reservoirs for any other purpose. An authority very much to the point is National Guaranteed Manure Co. v. Donald, 4 H. & N. 8. In that case a canal company had been converted by act of Parliament into a railway company, and the canal itself was abandoned. The canal company owned certain water privileges which the railway company undertook to dispose of by lease. It was held that the railway took no rights in the water privileges. Pollock, C. B., said (p. 16): “The railway company arose out of a previously existing canal company. The canal company had a right to take water for the canal; but the canal had ceased to exist; therefore the right of the canal company had also ceased. I agree with my Brother Martin that if an easement for a particular purpose is granted, when that purpose no longer exists, there is an end to the easement.” He then referred to Rochdale Canal Co. v. Radcliffe, 18 Q. B. 287, and said: “That case is a direct authority that a parliamentary corporation is a corporation for those purposes only for which it has been established by parliament, and has no existence for any other purpose, and that whatever is done beyond the scope of such, purpose is ultra vires and void. . . . This easement was incidental to the canal, and when the canal ceased to exist, the easement altogether ceased.” This reasoning commends itself to us, and we think it applies closely to the case now before us, and leads clearly to the conclusion that the Delaware & Hudson Canal Company reserved the easement of storing and taking water only as incidental to the maintenance of its canal; and when that was abandoned, the easement came to an end with it. “Any act of the dominant owner that is inconsistent with his further enjoyment of the right is an abandonment of it:” Jones on Easements, sec. 852.

The principle is identical with that set forth in Jessup v. Loucks, 55 Pa. 350. There a canal company abandoned its works and ceased to use its easements. But before doing so, it undertook to sell the right to use its surplus water, and its grantee claimed the right to reconstruct a dam. It was held that the easement had been lost and the company had no right to make such a grant. Mr. Justice Thompson said (p. 362): “The grant itself being of an incident connected with or arising out. of the principal object in granting the charter to the company, must necessarily expire with the principal, and cease when that ceases. In the nature of things, there could be no fee-simple estate in it. The grant might be perpetual if the works continued to be so, but its perpetuity would depend upon that. . . . Such a grant, in its enjoyment, is as permanent only as the creation of which it is an incident, and necessarily as unstable. Like the natural phenomenon of the shadow cast by a substance, it vanishes when the substance disappears.”

It will be remembered that the right of the Delaware & Hudson Canal Company to alienate its lands is not at all in question. It did that in the conveyance to Lord and Tracy. But in so doing, it created a reservation which imposed a burden of servitude upon the lands in the hands of its grantees, the new owners of the fee. We are dealing merely with the character of this reservation. Our study of the question has satisfied us that the reservation created a right in the grantor to use the land for a special purpose not inconsistent with the general property right in the owners. That this purpose was the storage and supply of water for the maintenance of the canal of the grantor, under the authority of its charter, and was incidental to the maintenance of the canal, and when that was abandoned, the purpose for which the right or easement was created ceased to exist, and the easement was extinguished. The owners of the property in fee were then relieved of the servitude. It follows that the defendant and its predecessors in title have been wrongfully in possession of the property described in the writ, since the ex-tinguishment of the easement.

The judgment of the. court below is reversed, and it is now ordered that judgment be entered for the plaintiff, for the premises described in the writ.


author: Mr. Justice Pottek,

text:
    Honesdale Ice Company v. Lake Lodore Improvement Company, Appellant.

      Contracts — Sales—Continuing sales — Waiver of terms — Payments— Estoppel.

    1. Where the terms of a contract of continuing sales as to payments have not been observed by either party notice of the seller’s intention to require strict compliance with the terms of the contract as to future bills should precede rescission.
    2. In an action for breach of a contract to furnish ice for a specified period it appeared that the contract contained a provision giving the defendant vendor the right to cancel the contract if the other party made default for a period of five days after any payment fell due. Payments were to be made not later than the tenth day of each month following shipments and in no event were they to be delayed longer than October 10, in each year. It was admitted that every monthly payment made during the year 1908 was more than five days overdue, yet such payments seemed to have been received by the defendant without protest or objection, and without any intimation that the time or method of payment was unsatisfactory. The last payment for ice delivered in the year 1908 was made by the plaintiff on January 31,1909. The defendant wrote a letter on February 10, 1909, stating that, exercising the option contained in the contract, it had terminated the agreement by reason of the delayed payments. The court submitted to the jury for determination as a matter of fact, whether or not the defendant, by repeatedly accepting, without objection, overdue payments, had waived its right to terminate the contract on account of delay. Held, no error.

      Contracts — Sales—Waiver of breaches — Estoppel.
    3. A party who proposes to insist upon a technical forfeiture of a contract upon certain grounds specified, is usually held to the case he has made. If he assumes to claim a forfeiture upon grounds specifically stated, he is deemed to have waived other breaches.
    4. Where the vendor under a contract of continuing sales refuses to complete his contract and at the time avowedly bases his refusal upon the specific ground that payments had not been made as required, he is not entitled, at the trial of a suit to recover damages for such refusal to complete the contract, to attempt to base the right to rescind upon the alleged insolvency of the other party to the contract.

      Contract — Sales—Measure of damages.

    5. When contracts for the sale of chattels are broken by the vendor failing to deliver the property according to the terms of the bargain, the general rule is, that the measure of damages is the difference between the contract price and the market value of the article at the time when and the place where it should have been delivered, with interest.
    Argued Feb. 21, 1911.
    Appeal, No. 318, Jan. T., 1910, by defendant, from judgment of C. P. Wayne Co., Oct. T., 1909, No. 65, on verdict for plaintiff in case of The Hones-dale Ice Company, to use of Russell T. Whitney, v. The Lake Lodore Improvement Co.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit for breach of a contract of sale. Before Stewart, J., specially presiding.
    On February 1, 1909, the treasurer of the Honesdale Ice Company, wrote the defendant the following letter, which the defendant denied ever having received:

      “Honesdale, Pa., Feb. 1, 1909.
    “Mr. John H. Jordan,
    “Lake Lodore Imp. Co.,
    “Scranton, Pa.
    “Dear Sir:—
    “This is to advise you that the property and business of The Honesdale Ice Company has this day been sold and transferred to Russell T. Whitney, of Honesdale, formerly manager of the Company. The contract between The Honesdale Ice Company and the Lake Lodore Improvement Company has been accordingly assigned to Mr. Whitney under authority therein contained. Mr. Whitney desires to continue the terms of the contract for the coming season. I enclose herewith check for $100, balance of account due the Lake Lodore Improvement Company.
    “Very truly yours,
    “Homer Greene,
    “Treasurer.”
    On February 9, 1909, Mr. Greene, treasurer of the Honesdale Ice Company, wrote to the defendant complaining that winter ice (which was not included in the contract in this case) was not furnished to Mr. Whitney, and upon receipt of this letter the defendant replied as follows, on February 10, 1909:
    “Scranton, Pa., February 10, 1909.
    “Homer Greene, Esq.,
    “Honesdale, Pa.
    “Dear Sir:—
    “We just received your letter referring to the refusal of Mr. McNally to supply ice to Mr. Whitney, successor to the Honesdale Ice Company, at Honesdale.
    “In reply wish to say that the reason for Mr. McNally’s action was that the contract between the Lake Lodore Improvement Company and the Honesdale Ice Company was invalidated before any assignment of it was made to Mr. Whitney by your company. The essential conditions in reference to paying for the ice were not complied with by your company, and exercising the option accorded to us under the terms of the contract, we have terminated and cancelled the same. Under the circumstances we do not feel obligated to furnish to Mr. Whitney any ice, but we shall be pleased to take the matter of a new contract up with him at any time he may desire, and discuss the terms and conditions he desires to be inserted therein.
    “Trusting that this explanation is sufficient, and thanking you for the receipt of your check as final payment for the balance due us by your company, we are,
    “Very truly yours,
    “Lake Lodore Improvement Co.,
    “by John H. Jordan,
    “President.”
    The improvement company refusing to furnish ice to Mr. Whitney, suit was brought on November 24, 1909.
    Verdict and judgment for plaintiff for $3,250. Defendant appealed.

      Errors assigned were (1) inadequacy of charge; (2) refusal of binding instructions for defendant; (4) overruling motion of judgment n. o. v.; (5) refusal to admit evidence offered to show the importance to the wholesale vendor of ice of the terms in the contract requiring the full yearly settlement not later than October 10, of each year; (6-13) refusal to admit evidence offered to show that the Honesdale Ice Company was insolvent and on 'the point of going out of business in 1908 and in January, 1909, and that Mr. Whitney was then insolvent; (15) refusal of defendant’s twelfth point as follows: “The letter of February 1st, 1909, Plaintiff’s Exhibit No. 3, is not such a clear expression of the intention of the plaintiff to renew the contract for the year 1909 as would be binding upon the Honesdale Ice Company, or Russell T. Whitney, and even if you believe it was received by the Lake Lodore Improvement Company, it would not be binding upon the defendant, and your verdict therefore must be for the defendant;” (16) refusal of defendant’s third point, as follows: “In an action for breach of contract for supply of ice as in this case the measure of damages is the difference between the price agreed upon in the contract and the market price at the date of the breach, which in this case is February 10th, 1909.”

      Chas. P. O’Malley, of Warren, Knapp & O’Malley, with him Frank P. Kimble and Reese H. Harris, for appellant.—
    No waiver based on an estoppel exists in the case at bar: Waters v. Wolf, 2 Pa. Superior Ct. 200; Diehl v. Adams County Mut. Fire Ins. Co., 58 Pa. 443; Findeisen v. Fire Ins. Co., 57 Vt. 520; Johnston v. Yale, 19 La. Ann. 212; Royal v. Aultman & Taylor Co., 116 Ind. 424 (19 N. E. Repr. 202); Bird v. Hamilton, Walk. (Mich.) 361.
    The mere acceptance of money due on a contract after the time when due is not of itself evidence of the waiver of any right under the contract: McCombs v. McKennan, 2 W. & S. 216; Penna. Trust Co. v. Bogert, 11 Kulp, 247; Moulton v. McOwen, 103 Mass. 587; Evans v. R. R. Co., 26 Ill. (16 Peck) 189; Dermott v. Jones, 64 U. S. 220.
    Insolvency was material as bearing on the question of estoppel: Sensinger v. Boyer, 153 Pa. 628; Kline v. McCandless, 139 Pa. 223.
    The true measure of damages in this case was not the market value of ice at the time when ice might have been delivered under the contract, but the state of affairs at the date of the alleged breach of the contract by the defendant on February 10, 1909: Arnold v. Blabon, 147 Pa. 372.

      Homer Greene and Chas. A. McCarty, for appellee.—
    The admitted acceptance by the defendant of the delayed payments without protest or warning was sufficient for the jury to find, as they did, a waiver of that provision of the contract giving a right of cancellation after five days’ default: Cogley v. Browne, 11 W. N. C. 224; Goff-Kirby Coal Co. v. Marine Coal Co., 31 Pa. Superior Ct. 60; Price v. Beach, 20 Pa. Superior Ct. 291; Forsyth v. Oil Co., 53 Pa. 168; Portland Ice Co. v. Connor, 24 Pa. Superior Ct. 493; Hatton v. Johnson, 83 Pa. 219; Hazleton Coal Co. v. Buck Mountain Coal Co., 67 Pa. 301.
    . It was for the jury to say from the evidence whether or not there had been a waiver: Easton v. Jones, 193 Pa. 147.
    July 6, 1911:
   Opinion by

Mr. Justice Pottek,

The contract between the parties in this case contained a provision, giving the defendant the right to cancel the contract, if the other party made default for a period of five days after any payment fell due. Payments were to be made not later than the tenth day of each month following the shipments, and in no event were they to be delayed longer than the tenth of October in each year. It is admitted that every monthly payment made during the year 1908 was more than five days overdue, yet they seem to have been received by the defendant without protest or objection, and without any intimation that the time or method of payment was unsatisfactory. The last payment for ice delivered in the year 1908, was made on January 31, 1909. The defendant, the improvement company, wrote a letter on February 10, 1909, stating that, exercising the option contained in the contract, it had terminated the agreement by reason of the delayed payments. The court below submitted to the jury for determination as a question of fact, whether or not the defendant, by repeatedly accepting without objection, overdue payments, had waived its right to terminate the contract on account of the delay. Counsel for appellant contend that the question of waiver in this case, was one of law for the court. But if so, the trial judge could only have instructed the jury that under the admitted facts, and the course of dealing between the parties, the defendant could not suddenly terminate the contract without warning of its intention thereafter to require payments in strict compliance with the terms of the agreement. The general rule is that a forfeiture for nonpayment of money, at an appointed day, is waived by the subsequent acceptance of payment in full, without objection upon that account. “If the promisor has made default in performance with respect to the time thereof, and the promisee subsequently permits or urges him to continue performance, or accepts performance thereafter, or accepts payments made in performance, or otherwise treats such contract as still in force, such breach is waived:” 3 Page on Contracts (1905): 1502. In Morgan v. McKee, 77 Pa. 228, it was said (p. 231) that it was the duty of parties to a contract for the sale and delivery of oil “to act promptly on the occurrence or discovery of the breach, and if they were guilty of undue delay, they must be regarded as having waived their right to rescind and elected to treat the contract as still subsisting.” See also Forsyth v. Oil Co., 53 Pa. 168, and Portland Ice Co. v. Connor, 24 Pa. Superior Ct. 493, where Judge Rice carefully reviewed the authorities, and pointed out that where the terms of a contract as to payments have not been observed, notice of the seller’s intention to require strict compliance with the terms of the contract, as to future bills, should precede rescission.

As the record here stands, the verdict of the jury must be accepted as establishing • the fact that the defendant waived its right to cancel the contract upon the ground that the payments were not promptly made. Another question of fact, settled by the verdict, is that the contract was duly renewed for the year 1909. The ice company assigned, on February 1, 1909, all its interest in the contract to Russell T. Whitney, and on the same day, Homer Greene, treasurer of the company, notified the improvement company of the assignment, and of Mr. Whitney’s desire to continue the contract for another season. With this letter a check for $100, balance due by the ice company since October 10, 1908, was inclosed. The receipt of this letter was denied by the improvement company, although the receipt of the check was admitted; but the verdict of the jury established the fact that it had been received. Mr. Whitney, as assignee of the contract, was exercising a clear right to renew, if the contract was then in force; and the right to renew was not denied by defendant, except as it maintained that it had canceled the contract for delay in making payments. The sufficiency of' the notice that Mr. Whitney was exercising the option of renewal given by the contract, can hardly be seriously questioned.

Counsel for appellant also complain that the trial judge excluded testimony as to the insolvency of the plaintiff company and its assignee Mr. Whitney. But this reason was not suggested at the time when the defendant sought to cancel the contract. Its action was at that time avowedly based upon the specific ground that the payments were not made as required. This was the only reason assigned, at the time, and it was too late, we think, at the trial to attempt to base the right to rescind upon the alleged insolvency of the assignee of the contract. “A refusal to perform on the ground of a specific breach assigned by the party so refusing as a ground for such refusal, is a waiver of other breaches which are known to him or brought to his notice:” 3 Page on Contracts (1905), sec. 1504. “A party who proposes to insist upon a technical forfeiture of a contract upon certain grounds specified, is usually held to the case he has made. If he assumes to claim a forfeiture upon grounds specifically stated, he is deemed to have waived other breaches:” Wright v. Land Co., 100 Wis. 269 (274). “Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground, and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of law:” Railway Co. v. McCarthy, 96 U. S. 258 (267).

A familiar application of this principle is often found in suits upon contracts of insurance. It has been generally held where a company sets up one ground of forfeiture as a defense to an action on a policy, and denies liability on this ground alone, all other known grounds of forfeiture are thereby waived: 3 Cooley on Insurance, 2680. We said, in Freedman v. Fire Assn, of Philada., 168 Pa. 249: "The trend of our decisions has been to hold insurance companies to good faith and frankness in not concealing the ground of defense and thus misleading the insured to his disadvantage. They may remain silent except when it is their duty to speak and the failure to do so would operate as an estoppel; but having specified a ground of defense, very slight evidence has been held sufficient to establish a waiver as to other grounds.” In the present case we do not find in the record any intimation until after suit was brought, that the refusal by the defendant to carry out the contract was based upon any other reason than that stated in the letter of February 10. Having based its attempt to rescind on the allegation of a specific breach, appellant is now precluded under the authorities from setting up a different ground for its action. The offers of evidence to show insolvency were therefore immaterial, and were properly excluded.

As to the measure of damages, if there was a breach of the contract it was a continuing one, or a succession of breaches during the four months in which the defendant was bound to deliver ice. It is agreed that the correct measure was the difference betwee'n the contract price for the ice, and the .market price. But appellant contended that the market price was to be ascertained as of February 10, 1909, the date when appellant gave notice that it regarded the contract as at an end. The court below held that the price at the time when the ice was to be delivered, was to be taken as the market price. He was correct in so holding. This court said, in White v. Tompkins, 52 Pa. 363: "On failure to deliver specific articles contracted for, the damages are generally the difference between the contract price and the market price at the time for delivery.” A statement of the general rule is thus set out in 2 Sedgwick on Damages (8th ed.), sec. 734: "When contracts for the sale of chattels are broken by the vendor failing to deliver the property according to the terms of the bargain, it seems to be well settled as a general rule, both in England and the United States, that the measure of damages is the difference between the contract price and the market value of the article at the time when and the place where it should have been delivered, with interest.” In a late decision of this court, in Morris v. Supplee, 208 Pa. 253, Mr. Chief Justice Mitchell pointed out that in case of refusal to deliver goods by the vendor, the buyer has the right to wait until the contract time for delivery has passed, and then purchase at the market price, holding the seller liable for any loss. As he there says, “the buyer is entitled to have the goods at the stipulated time of delivery.” This would be particularly true of a perishable commodity like ice, needed for summer delivery. “The buyer is not bound to supply himself before the contract date of delivery, even on a rising market.” These authorities fully sustain the position taken by the trial judge as to the proper measure of damages to be applied in this case.

We see nothing in any of the assignments of error which requires further consideration. They are overruled, and the judgment is affirmed.