author: Mr. Justice Mestrezat,

text:
    Siyufy v. Pennsylvania Company, Appellant.

      Carriers — Railroads—Initial and connecting carriers — -Evidence — Presumption—Case for jury.

    In an action against a terminal carrier to recover the value of one case of rugs, the case is for the jury and a verdict and judgment for the plaintiff will be sustained, where the plaintiff testifies that he delivered to the initial carrier nineteen cases of rugs, one consigned to a point on the line of the initial carrier, and eighteen to a point on the line of the terminal carrier, and that only seventeen were delivered at such point, and two employees of the initial carrier testify that seventeen cases only were delivered for the point on the terminal line and that the word “eighteen” had been inserted in the bill of lading by mistake.
    Argued Nov. 2, 1911.
    Appeal, No. 231, Oct. T., 1911, by defendant from judgment of C. P. No. 4, Allegheny Co., First Term, 1909, No. 58, on verdict for plaintiff in case of G. Siyufy v. Pennsylvania Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit to recover the balance of a case of rugs. Before Carnahan, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $3,104.72. Defendant appealed.

      Error assigned was in refusing binding instructions lor defendant.

      Gordon Fisher of Dalzell, Fisher & Hawkins, for appellant.
    — The presumption that the loss occurred on the defendant’s line may be so conclusively rebutted that the Court in certain cases ought to direct a verdict in favor of the defendant. The quality and degree of the defendant’s testimony was such that the Court ought to have entered judgment for the defendant in the case at bar: Lonzer v. R. R. Co., 196 Pa. 610; Schley v. R. R. Co., 227 Pa. 494; Second Nat. Bank v. Hoffman, 229 Pa. 429; Sullivan v. R. R. Co., 175 Pa. 361; Holden v. R. R. Co., 169 Pa. 1; Woodward v. Ry. Co., 145 Fed. Repr. 577; Farmers Nursery Co. v. Cowan, 21 Pa. Superior Ct. 192.

      William A. Wilson, for appellee.
    — In the case of connecting carriers, where proof is offered of the condition or quantity of goods when delivered to the first carrier and of their injury or loss before reaching their destination, the presumption is that the injury or loss was occasioned by the negligence of the terminal carrier: Vuille v. R. R. Co., 42 Pa. Superior Ct. 567; Cote v. R. R. Co., 182 Mass. 290 (65 N. E. Repr. 400); Moore v. N. Y., N. H. & H. R. Co., 173 Mass. 335 (53 N. E. Repr. 816); Smith v. Railroad Co., 43 Barb., 225; Laughlin v. Railway Co., 28 Wis. 204; Memphis & Charleston R. R. Co. v. Holloway, 68 Tenn. 188; Dixon v. Railroad Co., 74 N. C. 538; Leo v. Railway Co., 30 Minn. 438 (15 N. W. Repr. 872); Beard v. Railway Co., 79 Iowa 518 (44 N. W. Repr. 800); Savannah, F. & W. Ry. Co. v. Harris, 26 Fla. 148 (7 So. Repr. 544); Faison v. Ry. Co., 69 Miss. 569 (13 So. Repr. 37); Forrester v. Ga. Railroad & Banking Co., 92 Ga. 699 (19 S. E. Repr. 811); Union Pac. Ry. Co. v. Hepner, 3 Colo. App. 313 (33 Pac. Repr. 72); Burke v. Express Co., 87 Ill. App. 505; Western Maryland R. R. Co. v. Landis, 95 Md. 749 (53 Atl. Repr. 1124); Flynn v. Ry. Co., 43 Mo. App., 424.
    Where a presumption of negligence is imposed upon defendant by law, and the defendant relies solely upon oral evidence to rebut that presumption, the case is for the jury: Second Nat. Bank v. Hoffman, 229 Pa. 429.

      January 2, 1912:
   Opinion by

Mr. Justice Mestrezat,

The plaintiff is a dealer in oriental rugs. On July 8, 1908, he delivered at the freight station of the Toledo & Ohio Railway at Findlay, Ohio, certain cases of rugs, one to be shipped to New York and the others to Mansfield, Ohio. A bill of lading or receipt for eighteen cases of rugs was delivered to the shipper by which the Railway Company agreed to carry the goods to Mansfield, if on its road, otherwise to deliver them to another carrier on the route to said destination. The rugs were placed in a car which was transferred at Dunkirk, Ohio, to the defendant company, the connecting carrier, which took the car over its own line to Mansfield, the destination of all the cases except the one consigned to New York. That case was taken from the car at Dunkirk and its transportation was continued over the initial carrier’s line to New York. The defendant gave notice to the consignee of the arrival of the goods at Mansfield. It appears on the notice that eighteen cases of rugs were shipped at Findlay for Mansfield, but the notice directed attention to the fact that the consignment was one case short on arrival at Mansfield, there being only seventeen cases. The plaintiff alleges that he delivered nineteen cases of rugs to the initial carrier at Findlay and that one case was to be shipped to New York and eighteen cases to Mansfield. The defendant company having delivered but seventeen cases and refusing to account for the other case, the plaintiff brought this action of assumpsit to recover damages for the loss of the case which was not delivered. The defense was that but eighteen cases were delivered to the carrier at Findlay, seventeen of which were to be shipped to Mansfield and one to New York. The learned court below submitted the case to the jury which returned a verdict for the plaintiff. No motion for a new trial was made, but the defendant moved for judgment non obstante veredicto which was refused. Judgment having been entered on the verdict, the defendant has taken this appeal.

The assignments allege error in the court in not directing a verdict for the defendant company, and subsequently in refusing to enter judgment for the defendant non obstante veredicto. The position of the defendant company, as stated by its counsel, is that under the circumstances disclosed on the trial the presumption that the loss occurred on the company’s line was so decisively met by its evidence as to shift the burden of proof, and that the plaintiff did not meet the burden thus shifted to him, and therefore the court should have directed a verdict for the defendant. We do not regard this position as tenable. The case, as tried, resolved itself into the single question of fact whether the plaintiff had delivered to the initial carrier at Findlay seventeen or eighteen cases of rugs to be transported to Mansfield. If eighteen cases were received by the initial carrier at Findlay for shipment to Mansfield to be carried over its own line and the defendant’s line, the subsequent failure of the defendant to deliver the eighteen cases cast the burden upon it to account for the failure to make the delivery of all the cases to the consignee at Mansfield. Under the circumstances a presumption arose that the loss occurred on the defendant company’s line. It is n.ot alleged that all the rugs received by the initial carrier for shipment to Mansfield were not delivered to the defendant at Dunkirk to complete the transportation. The delivery of the rugs to the initial carrier and the failure of the connecting carrier to deliver them at their destination raised the presumption of negligence on the part of the defendant company which it was called upon to rebut. It made the attempt to rebut the presumption by showing that only seventeen cases of rugs had been delivered to the initial carrier at Findlay for transportation to Mansfield. In no other way did the defendant attempt to meet the presumption of negligence arising from the failure to deliver the case of rugs. It is apparent therefore that whether the presumption of the defendant’s negligence was rebutted or not turned upon the disputed fact whether the rugs were delivered, as alleged by the plaintiff, to the initial carrier at Findlay. Under the evidence offered it is manifest that the court could not have declared that the presumption was conclusively rebutted and directed a verdict for the defendant. The plaintiff testified clearly and distinctly that he had delivered eighteen cases to be shipped to Mansfield. He was corroborated by the bill of lading or receipt of the defendant company’s billing clerk acknowledging the receipt of eighteen cases to be shipped to Mansfield. The notice given by the defendant company to the consignee at Mansfield while noting a case short stated that eighteen cases had been delivered to the initial carrier at Findlay for shipment. This evidence clearly made out a case which the learned court was required to submit to the jury. The facts as thus proven raised a presumption of negligence on the part of the defendant company.

The billing clerk and the checking clerk of the initial carrier testified for the defendant. These witnesses denied that eighteen cases of rugs had been delivered at Findlay for shipment to Mansfield, or that that number of cases had been shipped to that destination. They further denied that eighteen cases of rugs were placed in the car for shipment to Mansfield. They testified that they counted the number of cases that were delivered originally to the initial carrier at Findlay and that in all they only numbered eighteen, and one of the cases was to be shipped to New York and seventeen to Mansfield. The billing clerk further testified that after the cases had all been delivered he counted them and made out a bill of lading originally for seventeen cases to be shipped to Mansfield and one case to New York, but there being some dissatisfaction on the part of the plaintiff by reason of freight charges he made out another bill of lading in which the rate was reduced and in which the number of cases to be shipped to Mansfield was erroneously stated to be eighteen instead of seventeen. The defendant claims that the testimony of these two witnesses show that but seventeen cases of rugs were received for shipment to. Mansfield, and explains how the error in the bill of lading occurred. But in view of the plaintiff’s evidence it would have been error for the learned court below to have instructed the jury that the testimony of these two witnesses conclusively showed that but seventeen cases of rugs had been delivered to the initial carrier for transportation, and that therefore the verdict should be for the defendant. The plaintiff made out a case for the jury by his own testimony and the bill of lading issued by the initial carrier. This raised the presumption which the defendant had to meet. The attempt to meet it was solely by the introduction of oral testimony which had to be submitted for the consideration of the jury. The credibility of the witnesses was for the jury and not for the court. Whether the defendant met and overcome the plaintiff’s testimony as to the disputed fact of delivery of the rugs to the carrier at Mansfield was a question clearly within the province of the jury. If it was decided by that body in favor of the defendant, there was no delivery to the initial carrier of the missing case of rugs and upon the failure of the connecting carrier to deliver it at the destination there was no presumption of negligence on the part of the defendant which would impose liability in this case. If on the other hand the jury found that the missing case was delivered to the initial carrier to be shipped under the bill of lading to Mansfield, and the connecting carrier did not deliver it to the consignee, there arose a presumption of negligence on the part of the defendant which was not rebutted and the plaintiff was entitled to recover. The single question of fact, determinative of the case, was for the jury, and the learned trial judge was right in refusing to enter judgment for the defendant notwithstanding the verdict.

The judgment is affirmed.

Mr. Justice Elkin, dissents.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Carnegie Borough, v. Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co., Appellant.

      Nuisance — Pier in stream — Injunction—Equity—Jurisdiction.
    On a bill in equity by a borough against a railroad company to compel the removal of a pier from a stream, a mandatory injunction will be granted, where the court finds that the pier obstructed the stream in such a manner as to be a public nuisance, and such a finding will not-be disturbed unless for manifest error even if the testimony be conflicting. Com. v. Stevens 178 Pa. 543, followed.
    Argued Nov. 2, 1911.
    Appeal, No. 232, Oct. T., 1911, by defendant from decree of C. P. No. 2, Allegheny Co., July Term, 1910, No. 530, .warding an injunction in case of Carnegie Borough v. Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction to remove a pier from Campbell’s Run.
    Frazer, P. J., found the facts to be as follows:
    FINDINGS OF FACT.
    1. Plaintiff is a municipal corporation of the County of Allegheny, incorporated under the general borough laws of this Commonwealth.
    2. Defendant is a railroad corporation subsisting under the laws of the State of Pennsylvania, and owns and operates a line of railroad connecting the City of Pittsburgh with points West. A portion of its line is situated within the municipal limits of plaintiff’s borough.
    3. Two streams, Chartiers Creek and Campbell’s Run, flow through plaintiff’s borough. The latter flows approximately East and West and empties into the former.
    4. In the operation of its railroad, defendant has constructed, and maintains and uses, a bridge over Campbell’s Run, about 250 feet above its mouth, upon which bridge are constructed and laid down seven tracks. The bridge is 44.4 feet in width, extends up and down the stream about 100 feet, and is from 5 to 7% feet above the bed of the stream. Previous to filing the bill in this case the superstructure rested upon and was supported by stone abutments located upon the banks of the Run. A short time before the entering of these proceedings defendant began erecting mid-way between the abutments of its bridge a concrete pier, which it has since completed, four feet in width and extending the full length of its bridge.
    5. There are at present, and have been for some time, two other bridges over Campbell’s Run in the immediate neighborhood of defendant’s bridge: (a) a highway bridge owned by Allegheny county, located 110 feet above defendant’s structure, which highway bridge connects Railroad avenue with Highland avenue, both of which are prominent streets of plaintiff Borough. This bridge has a span of 31 feet in length, across the stream, and is 7.72 feet in the clear above its bed; (b) a private bridge immediately below defendant’s structure, with a span of 28% feet and a clearance of 8% feet above the bed of the stream. The East abutment of this latter bridge is located almost directly in front of the East half of the bed of the stream, as divided by the new concrete pier of defendant’s bridge, and materially interferes with the flow of water, ice and debris under that portion of defendant’s bridge.
    6. The channel of Campbell’s Run below defendant’s bridge is contracted by the private bridge referred to in the preceding finding, to 30% feet, and is further reduced by cribbing upon the East side and a stone wall on the West side to 20 feet, to a point near its mouth. Where it empties into Chartiers Creek its channel width is 25 feet.
    7. The water shed of Campbell’s Run is precipitous territory, and when sudden or heavy rains occur the stream rises quickly and discharges a considerable volume of water, at times the water carrying with it large quantities of ice and debris.
    8. Upon several occasions during the past ten or twelve years, following extraordinarily rains or thaws, the channel of Campbell’s Run, at defendant’s bridge, has become closed with either ice or debris, thereby causing the water to flow upon the streets of the Borough in that immediate vicinity and carrying with it driftwood, ice and other debris.
    9. The concrete pier constructed by defendant under its bridge materially lessens the space for the flow of water under defendant’s bridge, and as conditions now exist in the bed of the stream under defendant’s bridge, and by the interference in its East channel by the abutment of the private bridge below, the danger of flooding the streets of the Borough and interfering with travel thereon is considerably increased.
    10. The purpose of defendant in reconstructing its bridge is to provide for the increased weight of its cars and motive power, and also to eliminate the supports, which, in the present bridge, now rise about two feet above the roadbed. The reconstructed bridge is to have a level surface over its entire stream and thus do away with the present supports, which defendant claims are dangerous and like to result in death or injuries to its employes. The testimony does not show that any employe of defendant Company was ever' injured by the supports of the present bridge.
    11. A bridge of sufficient strength to provide for the increased weight of defendant’s rolling stock can be erected without a pier in the middle of the channel of Campbell’s Run at a slight increase in cost over the proposed bridge with a middle pier.
    The court entered a decree enjoining the defendant from obstructing the stream.

      Error assigned was the decree of the court.

      W. S. Dalzell of Dalzell, Fisher & Hawkins, for appellant.
    — Upon a bill in equity to restrain or abate a public nuisance, if the matter complained of be not a nuisance per se, and if the testimony be conflicting whether it is a public nuisance at all or not, an injunction will not be granted until after the fact shall have been determined by a trial at law: New Castle v. Raney, 130 Pa. 546; Rhea v. Forsyth, 37 Pa. 503; Mowday v. Moore, 133 Pa. 598; Wood v. McGrath, 150 Pa. 451; Gorman v. McDermott, 42 Pa. Super. Ct. 516; Marshall v. Penna. Co., 44 Pa. Super. Ct. 68; Pitts. Ft. Wayne & Chicago Ry. Co. v. Gilleland, 56 Pa. 445; B. & O. R. R. Co. v. Sulphur Spring Ind. School Dist., 96 Pa. 65; Brown v. Pine Creek Ry. Co., 183 Pa. 38.

      Jas. H. Duff, for appellee.
    — The court had jurisdiction: Mowday v. Moore, 133 Pa. 598.
    January 2, 1912:
   Opinion by

Mr. Justice Elkin,

The only difficulty we see in determining the questions raised by this appeal is whether upon the whole .record equity had jurisdiction to grant the relief prayed for. It must be conceded that the matters complained of did not constitute a nuisance per se. The proposed pier was not in itself a nuisance, but might become so by reason of its location, surroundings and probable dangers resulting from narrowing the channel and thus causing the waters to overflow the banks in times of floods to the injury of the lives and property of the residents of the complaining borough. In this sense it might be a nuisance within the meaning of the law. The answer denied that the pier when erected would cause the injuries complained of and the evidence was conflicting as to the probable results of such an obstruction in the stream. Under these circumstances appellant contends that the nuisance must first be established in an action at iaw before equity will interpose its strong arm to grant relief: Rhea v. Forsyth, 37 Pa. 503; New Castle v. Raney, 130 Pa. 546; Mowday v. Moore, 133 Pa. 598, and Wood v. McGrath, 150 Pa. 451, are relied on to sustain this position. This contention gives the rule recognized in these cases a significance not warranted by the facts. In three of these cases the bills were filed by individuals to abate nuisances in their nature private. In New Castle v. Raney, it was held that where the testimony as to whether a mill-dam, maintained for water power purposes for half a century and about which a city had grown up, has become a public nuisance or not, is conflicting, a bill to abate it will be dismissed, without prejudice to the right of complainants to bring an action at law. It will be observed that the relief sought was in the nature of a mandatory injunction requiring the removal of a dam which had been lawfully maintained for a long period of years and the evidence upon which the municipal authorities based their right to demand such relief was not only conflicting but doubtful. These cases were distinguished in Com. v. Stevens, 178 Pa. 543, by the learned court below sitting as a chancellor, and upon appeal this court affirmed the decree there made enjoining defendants from obstructing the stream in the manner proposed. In the opinion filed in that case, this court said: “The defendants claim that they cannot be lawfully enjoined from erecting the wall at the point in the stream where they have located it until it has been determined in a common law action that they have no right to build it there. The reason given for the claim is that the evidence in regard to their right and the effect of the wall upon the overflow in times of freshets and floods is conflicting. They cite as justifying their claim: New Castle v. Raney, 130 Pa. 546, 562; Mowday v. Moore, 133 Pa. 598, 612; and Wood v. McGrath, 150 Pa. 451, 458. These cases were brought to the attention of the learned judge of the court below, and were plainly and satisfactorily distinguished by him from the case at bar.” This can only mean that the reasons given by the court below for the distinctions made were satisfactory to and approved by this court. That case rules the case at bar upon the question of jurisdiction. In that case as in this the proceeding was instituted by the municipal authorities for the purpose of restraining private parties from obstructing a stream of water in such manner as to be a public nuisance. There as here the chancellor found the facts from conflicting testimony and made the decree accordingly. Upon the question of jurisdiction the present case cannot be reversed without in effect overruling that case. In every essential particular it is on all fours with the present case. It is the latest case in which this exact question has been considered and in our opinion it is controlling here. The evidence was ample to sustain the facts found by the learned court below and we would not feel warranted in reversing the findings of fact or the conclusions of law based upon the facts so found.

The decree is affirmed upon the record here presented without prejudice to the right of appellant to ask for a modification of the decree in the court below in the event that the negotiations alleged to be pending whereby the obstructions in the stream below the bridge in question are to be removed at the expense of the railroad company, are successful and the obstructions removed as contemplated. When this is done and the stream is thus widened, the court may very properly modify the decree, if convinced, that the dangers complained of will be thus obviated. Costs to be paid by appellant.


author: Per Curiam,

text:
    Stevenson, Appellant v. Henderson.

      School law — Taxation—Assessment of taxes for 1911 — Act of Mm 18, 1911, P. L. 809.

    School boards in levying school taxes after the passage of the Act of May 18, 1911, P. L. 309, known as the “School Code” were bound to levy the taxes for 1911, in accordance with the School Code, and not in accordance with the law as it existed prior to the approval of the code.
    Argued Nov. 2, 1911.
    Appeal, No. 223, Oct. T., 1911, by plaintiff from decree of C. P. No. 2, Allegheny Co., Oct. T., 1911, No. 524, dismissing bill in equity in suit of John Stevenson v. J. R. Henderson et al. School Directors of Dormont Borough and Arthur Wessel, Tax Collector.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Shafer, J., filed the following opinion*.
    In this case an answer has been filed and the case set down upon bill and answer. The bill is by a taxpayer against the school directors and tax collector of the Borough of Dormont, praying for an injunction to restrain them from levying and collecting an occupation tax in excess of $1.00, and from requiring the payment of school taxes without allowing a discount of 5 per cent. The question raised by the case is whether the amount of school taxes which may be assessed is governed by the Act of May 18th, 1911, P. L. 309, commonly called the “School code,” or is to be regulated by the laws theretofore in force. The Act of May 18th expressly provides that it is to go into effect immediately upon its passage. This Act expressly repeals the Act of July 22nd, 1897, P. L. 305, authorizing the levy of a per capita tax of not more than $1.00, and in effect repeals the Act of June 25th, 1885, P. L. 187, which allows the tax collector to allow a discount of five per cent, on taxes paid within sixty days. The School Code provides in Section 2812 for the transition from the old system to that provided by the code, and directs that “all school directors shall levy the school taxes at the time or times and in the manner heretofore fixed by law,” and shall continue to serve until their successors have been duly elected and appointed under the code, the time fixed for this change being, in districts of the fourth class, the first Monday of December, 1911. The Act also provides that the first school year and the first fiscal year in districts of the fourth class, of which the borough in question is one, shall begin on the first Monday of July, 1911.
    As the School Code is in force since the time of its passage it follows that all proceedings in regard to school matters are to be carried on under its provisions, and any exception to that rule must distinctly appear in the Act. It is claimed by the plaintiff that the direction to the school directors now in office to levy the school taxes “at the time or times and in the manner heretofore fixed by law” is a direction to them to levy such amount of tax as was theretofore authorized by law and to order the collection of the tax by the collector in the manner theretofore authorized. The contention of the defendants is that the clause in question has no reference to the amount of the tax or the subjects of taxation, or the manner of collecting the same, but only authorizes the directors in office at the time of the passage of the Act to levy the taxes required by law, i. e., those required by the code, at the time and in the manner theretofore in use. In other words, the question is: What is meant by the expression “in the manner heretofore fixed by law.” We are clearly of the opinion that these words do not authorize existing school boards, in levying the taxes for the current year, as they are directed by the Act to do, to determine the amount and incidence of the tax according to Acts which have been repealed, but only authorized them to levy a tax under the provisions of the new law in the time and way provided for in the old law. The time is not in question, but the manner of levying the tax according to the former law was that it should be the votes of not less than a majority of the members of the board. This method is slightly changed in the new law, which provides that the tax shall be levied by the vote of a majority of all members of the board, with a record of how each member voted.
    The schood directors of the Borough of Dormont, having levied a tax at a time required by the old law, and so far as appears, having levied the tax by a vote of the majority of all the members of the board, but levied upon the subjects of taxation provided by the new law, seems to us to have done what the law requires, and the bill is therefore dismissed; costs to be paid by the plaintiff.

      Error assigned was decree dismissing the bill.

      John A. Metz, for appellant.
    — Provisions as to the time of making a tax levy and keeping a record of the proceedings in connection therewith are merely directory and not mandatory: Walker v. Edmonds, 197 Pa. 645; Eastburn’s App., 2 Chester County Rep. 241.

      Hugh M. Stilley, for appellees were not heard.
    January 2, 1912:
   Per Curiam,

The decree is affirmed on the opinion of Judge Shafer.


author: Mr. Justice Stewart,

text:
    Lamb v. Redding, Appellant.

      School law — School board — Abuse of discretion — Buildings— Equity — Injunction.
    A board of school directors abuses its discretion when it plans, in manifest disregard of public interests, to abandon a well located school site on which a school building with good foundations had been partially erected, to sell the site and the building which cost together $70,000, for $10,000, and to purchase another site and erect thereon another building at a combined cost of $150,000. In such a case a court of equity has jurisdiction to interfere by injunction for the protection of the public.
    Argued Nov. 2, 1911.
    Appeal, No. 233, Oct. T., 1911, by defendants, from decree of C. P. No. 2, Allegheny Co., July Term, 1911, No. 29, awarding injunction in case of William Lamb et al. v. D. L. Redding et al., School Board of the School District of McKees Bocks Borough.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Mosohzisker, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Miller, J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree awarding injunction.

      R. S. Martin, with him Edward F. Duffy, for appellants.
    — In the exercise of sound discretion an honest judgment reached after due consideration by a board of school directors with reasonable ground on which to base it, though wrong or mistaken, cannot be regarded as abuse of discretion or from which fraud or bad faith can be inferred: Roth v. Marshall, 158 Pa. 272; Com. v. Wenner, 211 Pa. 637; Butz v. Romig, 17 Pa. D. R. 1; Rittenhouse v. Creasy, 2 Kulp 241; Witherop v. Titus-ville School Board, 7 Pa. C. C. R. 451; Wharton v. Cass Twp. School Directors, 42 Pa. 358; Cooney v. Gardner, 43 Pitts. Leg. J. 190; Gaston v. Meadville School, 5 Pa. D. R. 549.

      James Balph, with him R. A. Balph and Albert B. Schultz, for appellees.
    — The court had jurisdiction: Kitchel v. Board of Commissioners, 123 Ind. 540 (24 N. E. Repr. 366); Crow v. Board of Commissioners, 118 Indiana 51 (20 N. E. Repr. 642); Sheidley v. Lynch, 95 Mo. 487 (8 S. W. Repr. 434).
    January 2, 1912:
   Opinion by

Mr. Justice Stewart,

Appellants constitute the present school hoard of the school district of McKees Rocks in Allegheny county. Their immediate predecessors purchased at a cost of $17,500 a lot of ground on which to erect a new and additional school building. In preparing the ground for the proposed new building, laying the foundation, and erecting the superstructure to the height of the first floor, they expended of the public money the further sum of $52,000, making in all an expenditure of about $70,000. The building has remained in that unfinished condition. Appellants now propose to abandon the site so chosen and improved, purchase another at a cost of $27,000, and erect thereon a school building estimated to cost when completed $125,000. The appellees, tax payers of the district, filed their bill complaining of this proposed action and asking that the board be restrained from carrying out their purpose. In the answer filed appellants seek to justify their action by the following considerations: first, that it is doubtful whether the foundations constructed on the present site are sufficient to support the contemplated structure, second, that to complete the building on which work has been begun, would open the door for claims now pending, or which may be made, for work and material employed and furnished in and about the uncompleted building, which in equity and good conscience ought not to be paid; and third, that it rests wholly in the discretion of the board to say whether the proposed change shall be made. The sixth finding of the learned chancellor who heard the case, relates to the first of these considerations, and is as follows: “From the weight of the evidence the fact is found, that the foundations of the May Avenue site, as reinforced with the walls thereon, and the superstructure as now existing, are entirely safe, and will admit with safety of the completion of the superstructure originally contemplated, or of any part thereof; or of adaptation to or modification thereof; it further appeared, not only from the weight of the evidence, but from personal examination of both places, that this particular site is commodious, elevated, quiet, one block distant from street car lines, with abundant opportunity for light and air. The further fact appears, that it is feasible to erect upon any one of the two wings of the present superstructure, a building in accordance with the original plans, or a modification thereof on new plans, containing eight rooms with all the necessary conveniences, at a cost of from $22,000 to $25,000, for each wing; and it would appear that the-e wings could be erected and completed ready for occupancy, the whole superstructure built up and roofed, even if not finished at present, on the basis of the original plans, or a modification thereof by independent plans, at a cost within the estimated cost of the new site and a completed building thereon.” With respect to this finding we have only to say that an examination of the evidence shows that it is abundantly supported and admits of no qualification. The chancellor further finds that the utmost that could be realized on a sale of the present site with the unfinished building would be $10,000. With regard to the second consideration, the chancellor says, “It does not follow that the use of the present structure in whole or in part, enlarges the rights of any of the so called claimants. Whatever rights they may have, existed when this work was stopped.” This is too evident to call for discussion. With the two reasons specifically alleged thus disposed of, in a way meeting our entire approval, all that remains is the question of discretion. If it appeared that the proposed abandonment of the present site was demanded because of its inadequacy, or because of considerations affecting the public health, or because the adoption of a new site would result in advantages bearing some reasonable proportion to the expenditure required, or that there was reasonable ground for difference of opinion with respect to these matters, the court would be without jurisdiction to interfere with the determination of the board as to its line of action. That all the things here complained of, that is to say, the abandonment of the present site regardless of the amount expended thereon, and the selection and purchase of the one proposed, are within the power delegated to the school board, is not open to question; and presumably the determination of the board to do these things rests upon considerations of public welfare, and has been reached by the exercise of intelligent judgment in connection therewith. The burden of showing to the contrary, when the action of a school board is challenged with respect to matters committed to its discretion, is a heavy one; for the power of the courts in such cases is exceedingly limited, and they are permitted to interfere only where it is made apparent that it is not discretion that is being exercised but arbitrary will or caprice. Discretion involves the exercise of judgment incidental to the proper performance of the duty delegated. When the contention is that the proposed action is unwise, no matter by what consensus of opinion this is shown, the law will refer it to mistaken judgment over which it has no supervision. But if it cannot be so referred; if the facts admit of no other conclusion than that the determination of the board has been influenced by other considerations than the public interests, no matter what these may have been, the law will regard it as an abuse of power, a disregard of duty, and it becomes the duty of the courts to interfere for the protection of the public. Not only does the evidence in this case overcome the favorable presumption in support of the board’s action, but it makes it impossible to connect that action with the exercise of judgment or proper regard for public welfare. Two of the specific reasons the board assigns for the proposed change are shown to be absolutely baseless, while the third is little better than a substitution of arbitrary pleasure for the discretion which the law allows. The learned chancellor, after a careful review of the evidence, finds no room for difference of opinion with respect to what the public interests require in the premises, and reaches the following conclusion: “It is evident as a result of this hearing that the best interests of this district are seriously and injuriously affected by the defendant’s proposed action; almost all the public money spent will have been absolutely. wasted. It is clearly demonstrated from the overwhelming weight of the evidence that whatever may have been the original defect in the foundation of a part of this building, and whatever may have been the extravagance or waste of the former board, and those with whom it contracted, including the apparent exorbitant cost paid for work and material hitherto furnished and done upon this structure, that it is now entirely safe and secure; to abandon it in the light of these facts, which if the board did not know before it certainly can ascertain from this record has no semblance of justification. It. is obvious that the accommodations now desired and those for many years in the future can be secured by proceeding upon either one or both of the wings of the present building at a cost less than the purchase price of the new site, so far as each wing is concerned. To abandon a good site and a safe structure which has cost the district in the neighborhood of $75,000, in actual cost and from which it could not realize $10,000, by a sale; to begin the erection of a new structure upon the proposed new site, with the uncertainties of foundations and the uncertain cost of an uncertain building, should not be sanctioned.” In this conclusion we concur. We should sustain the school board in the present contention if the evidence left us at all in doubt, not as to the wisdom of their policy, for that is no concern of ours, but as to whether that policy was determined upon by public considerations alone. Unfortunately it does not, but is convincing that public interests have been subordinated if not wholly ignored. The appeal is dismissed and the decree is affirmed.


text:
    City Improvement Co. v. Pittsburgh, Appellant.

      Road law — Widening street — Location of street — Ordinances.
    Where a city street forty feet wide connects with an alley twenty feet wide, and the two constitute a continuous opened, existing and travelled public thoroughfare, the city has no power by locating and relocating ordinances to locate what purports to be a new street sixty feet wide, but which in fact merely widens the existing street and alley. If the city thinks it proper to widen the street and alley it must do so in the manner provided by the statutes relating to the widening of streets. Hawkins v. Pittsburgh, 220 Pa. 7, followed.
    Argued Nov. 3, 1911.
    Appeal, No. 236, Oct. T., 1911, by defendant from decree of C. P. No. 3, Allegheny Co., Feb. T., 1911, No. 496, on bill in equity in case of City Improvement Co. v. City of Pittsburgh.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Evans, J.
    The facts are stated in the opinion of the Supreme Court.

      The court entered the following decree:
    And now, to wit, this 23rd day of September, 1911, this cause came on to be further heard, at this term, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as follows:
    1. That the ordinance of the City of Pittsburgh entitled, “An Ordinance locating Hamilton Avenue, from Frankstown Avenue to Fifth Avenue,” approved July 7, 1891, a copy of which is attached to the Bill of Complaint, is ultra vires, void and of no effect.
    2. That the ordinance of the City of Pittsburgh entitled, “An Ordinance relocating Hamilton Avenue, from a point 229.60 feet Westwardly from Lambert Street to Penn Avenue,” approved July 1st, 1903, a copy of which is attached to the bill of complaint, is ultra vires, void and of no effect.
    3. That the said ordinances of July 7, 1891, locating Hamilton Avenue, and of July 1st, 1903, relocating Hamilton Avenue, create a cloud upon the plaintiff’s title to the premises described in the Bill of Complaint, and that the same be removed therefrom.
    4. That the proper authorities of the City of Pittsburgh note upon the ordinance books, and upon the pages containing said ordinances of July 7th, 1891, and July 1, 1903, and upon the indices and records referring thereto, and upon the maps and plans of said city, referring thereto, the words, “Cancelled by the decree of the Court of Common Pleas No. 3 of Allegheny County, Pennsylvania, at No. 496 February Term, 1911.”
    5. That the defendant pay the costs of this proceeding.

      Error assigned was the decree of the court quoting it.

      C. Elmer Bown, with him C. A. O’Brien and C. K. Robinson, for appellant.

      A. M. Thompson of Gray, Thompson & Rose, with him Gordon & Smith, for appellee.
    January 2, 1912:
   Opinion by

Mr. Justice Mestrezat,

The facts of this case are not in dispute, and have been found and stated by the learned court below.

In 1891 the City of Pittsburgh enacted an ordinance locating Hamilton Avenue from Frankstown Avenue to Fifth Avenue.

The street thus located began at a point on Fifth Avenue directly opposite the end of a street called Hamilton Avenue, then opened on the ground and used by the public. The street provided for by the ordinance extended in substantially the same direction for a distance of 2800 feet. In this distance, as stated in the appellant’s history of the case, it passes through six plans of lots, crosses ten existing streets or alleys, and embraces within its limits two streets and an alley already opened and used in certain plans, involving the widening of one of these streets and the alley. The length of the street and alley is about 825 feet. In 1895 an ordinance was passed authorizing the opening and widening of Hamilton Avenue from Fifth Avenue to Frankstown Avenue. Viewers were appointed to assess the damages and benefits but before the completion of the proceedings the city repealed the ordinance. In .1903 an ordinance was passed relocating Hamilton Avenue from a point a short distance east of its intersection with Berlin street to Penn avenue, thus making the latter and not Frankstown avenue the western terminus of Hamilton avenue. This change or relocation of the street increased its length about 800 feet. The relocation of the street crosses the plaintiff’s property. In February, 1905, an ordinance was passed authorizing the opening and widening of Hamilton avenue from Fifth avenue to Penn avenue in accordance .with the locating and relocating ordinances. Again viewers were appointed, to assess the damages and benefits, but before the proceedings were concluded, the city, in November, 1905, enacted an ordinance repealing the opening and widening ordinance. The city has enacted no further legislation affecting Hamilton avenue.

The street as relocated passes through the plaintiff company’s property, and it has filed this bill praying for a decree that the locating and relocating ordinances create a cloud upon the plaintiff’s title to the premises described in the bill of complaint, and that said ordinances are ultra vires, void and of no effect. The prayer of the bill was granted by the court below and the city has taken this appeal.

The learned chancellor, in disposing of the case, held that it was ruled by Hawkins v. Pittsburgh, 220 Pa. 7. In that case it was held, as stated in the syllabus, that an ordinance of the City of Pittsburgh purporting to relocate an established alley, but having in fact the effect of widening the alley, is invalid; and that the city has no power to relocate a street, and if it intends to widen a street it must pursue the course prescribed by the statute. The learned counsel for the appellant strenuously contend that there is a radical distinction between this and the Hawkins case. In the latter case, the city attempted to widen Virgin alley which was about 500 feet long and had been opened and used for many years, and the appellant contends that it differs from the present case in that “the contemplated improvement related solely to Virgin alley, and was not undertaken in connection with the widening or locating of any other thoroughfare, and the relocating ordinance was a manifest attempt on the part of the city to widen the street and to postpone its liability for the damage occasioned thereby.” It is true, as suggested by the appellant, that the improvement was confined to Virgin alley and did not extend to any other thoroughfare, but the ordinance was not declared void upon that ground, but for the reason that its purpose and effect was to widen Virgin alley which could not be done by a proceeding to relocate it; and that if the city desired to widen one of its streets it must do so in a proper proceeding instituted for the purpose. It is said in the opinion (p. 13): “Its council cannot escape the provisions of the statute or ignore the course of procedure directed by the statute by simply declaring in the ordinance a purpose other than the facts disclosed. The facts must determine what method the city shall pursue to accomplish its purpose, and those facts requiring it to proceed in the manner provided in certain iegislátion, the provisions of the legislation will determine the course of procedure.”

The proceeding in the case in hand was to locate Hamilton avenue and relocate the western end of it. The ordinances dealt with the subject as a new street and as though the avenue was located on ground not occupied by other streets or alleys. They ignored the conceded fact that within the lines of the avenue as located there were an existing public street and a public alley. The street and the alley connect and are about seven or eight hundred feet in length. The street is 40 feet wide and the alley 20 feet. The ordinances provide that Hamilton avenue shall be located 60 feet wide, thereby widening the street 10 feet and the alley 40 feet. The avenue was located twenty years ago, and many years prior to and during that time the street and the alley within its limits were opened, existing and travelled public thoroughfares. The facts of this case bring it clearly within Hawkins v. Pittsburgh, supra, and the learned court below was right in declaring the locating and relocating ordinances void.

We are not inclined to disagree with the learned counsel for appellant as to what the law should be in such cases. It may be, as they suggest, that it would be better to permit such improvements to be made as a whole and not piece-meal; but it must be remembered that the authority of a city over its streets comes from the legislature, and that when it undertakes an improvement of this character it must be able to point to the necessary statutory power authorizing it. The legislature, as yet, has not thought proper to permit a city to widen its streets by a proceeding instituted for the purpose of locating or relocating them, and it is not the function of the court to supply what the legislative branch of the government has withheld. If, therefore, the city desires to exercise the power which it invokes in the present case, it must obtain it from the legislature.

The locating or relocating ordinances must be construed as one ordinance to locate Hamilton avenue from Fifth avenue to Penn avenue. The two ordinances locate but a single avenue between the termini, and that avenue passes over the plaintiff’s premises. In the subsequent ordinances for opening and widening the avenue, the city has treated the two locating ordinances as one proceeding to establish one street. The relocating ordinance was in effect an amendment of the original ordinance to the extent of changing a part of the original route of the street. It simply superseded the original ordinance in the location of the western end of the avenue. The two ordinances must be read together as locating a single street. The plaintiff therefore, as a property owner through which the avenue was located, may attack the validity of either or both ordinances.

The important and controlling question in the case is determined by the decision in Hawkins v. Pittsburgh, supra, and further discussion is therefore unnecessary. The decree is affirmed.


text:
    Stilley, Appellant v. Pittsburgh-Buffalo Company.

      Mines and mining — Surface—Support—Waiver of damages— Intention of parties.

    1. In a grant of all tbe coal underlying a tract of land, in tbe absence of an express waiver, or tbe use of words from wbicb tbe intention to waive clearly appears, there is imposed upon the mineral estate tbe servitude of surface support. Tbe owner of the surface may waive the right of surface support by his deed or covenant.
    2. Where a deed conveys all the coal underlying a tract of land “together with the free and uninterrupted right of way into, upon and under said land at such points and in such manner as may be proper and necessary for the purpose of digging, mining and carrying away said coal, hereby waiving all damages arising therefrom,” the words “waiving all damages” are to be construed to include such injuries to the land as may result from mining and removing all the coal. By such a deed the grantor waives his right to surface support.
    Argued Nov. 3, 1911.
    Appeal, No. 238, Oct. T., 1911, by plaintiff from decree of C. P. No. 2, Allegheny Co., Jan. T., 1911, No. 400, dismissing bill in equity in suit of John H. Stilley v. Pittsburgh-Buffalo Co.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.

    Affirmed.
    Bill in equity for an injunction.
    Haymaker, J., found the facts and conclusions of law as follows:
    1. The plaintiff is the owner in fee simple of all that certain tract of land situate in Jefferson Township, Allegheny County, containing ninety-five (95) acres, eighty (80) perches, subject to the conveyance of the coal and mining rights by his predecessors in title. The said property being conveyed to the plaintiff by Jackson Stilley by deed dated April 1st, 1895.
    2. That all the land underlying the said tract of land, together with certain mining rights, was conveyed by Jackson Stilley, tbe plaintiff’s predecessor in title, to J. J. Lawrence by deed dated January 18th, 1883. The mining rights and privileges which accompanied the said conveyance and were made a part thereof, were as follows:
    “Together with free and uninterrupted right of way into, upon and under said land at such points and in such manner as may be proper and necessary for the purpose of digging, mining and carrying away said coal; hereby waiving all damages arising therefrom. Together with the privilege of mining and removing through said premises other coal belonging to said party of the second part, his heirs or assigns, or which he or they or any of them may hereafter acquire.”
    3. The defendant is the owner of 49.86 acres of the said coal conveyed by Jackson Stilley to J. J. Lawrence, underlying the said land of the plaintiff. Said coal being conveyed to the defendant by a deed from the Pittsburgh Coal Company of Pennsylvania, dated December 27th, 1907, and in which the mining rights are as follows:
    “Together with the free and uninterrupted right of way into, upon and under said land at such points and in such manner as may be proper and necessary for the purpose of digging, mining and carrying away said coal and without liability for damages arising therefrom. Together with the privilege of mining and removing through said premises other coal now or hereafter owned by the said Grantee, its successors or assigns.”
    4. The defendant has been for some time and now is mining and removing the said coal owned by it underlying the plaintiff’s land, on which are situated plaintiff’s dwelling house, barn and other improvements, and in so doing, has been and now is removing the supports of the surface of plaintiff’s land, thereby causing the surface to break and sink and the said dwelling house, barn and other improvements thereon to be injured.
    5. Defendant proposes and intends to continue mining and removing the said coal owned by it underlying plaintiff’s land, and to continue removing the supports of the surface, by reason whereof, it is reasonable and probable to expect that further injury will be done to the surface of plaintiff’s land and the improvements thereon.
    6. That the negligence complained of is not of the manner of mining and removing the said coal, but of the removal of the supports of the surface and the failure to support the surface, thereby causing the surface of plaintiff’s land to break and sink and the improvements thereon to be injured.
    7. The injuries sustained by plaintiff are permanent and continuing.
    CONCLUSIONS OF LAW.
    1. In the grant of all the coal only underlying ;a tract of land, reserving the surface, the grantee owes the duty of surface support, unless the grantor by apt words or implication in the grant releases him from that obligation.
    2. The right to surface support is an absolute one arising out of the ownership thereof, and before it can be taken away the burden is upon the owner of the coal to show that the surface owner has contracted himself out of that right by plain and explicit language, and it cannot be taken away by any language in the grant that does not plainly import such an intention on the part of the surface owner.
    3. The following mining rights and privileges contained in the deed of conveyance from Jackson Stilley, the plaintiff’s predecessor in title, to J. J. Lawrence:
    “Together with free and uninterrupted right of way into, upon and under said land at such points and in such manner as may be proper and necessary for the purpose of digging, mining and carrying away said coal; hereby waiving all damages arising therefrom. Together with the privilege of mining and removing through said premises other coal belonging to said party of the second part, his heirs or assigns, or which he or they or any of them may hereafter acquire,”
    constitute a valid release of the right of surface support, and the plaintiff is not entitled to the relief prayed for in his bill.
    5. The plaintiff’s bill should be and is hereby dismissed at his cost.

      Error assigned was decree dismissing the bill.

      J. C. Boyer and John A. Metz, for appellant.
    — The owner of the mine must leave enough of the mineral in place to answer the purpose of support for the surface, unless the owner of the surface has released his right to support: Noonan v. Pardee, 200 Pa. 474; Robertson v. Coal Co., 172 Pa. 566.
    The right of surface support is an absolute right: Youghiogheny River Coal Co. v. Allegheny Nat. Bank, 211 Pa. 319; Miles v. Pennsylvania Coal Co., 214 Pa. 544.
    An absolute right of surface support is not waived by language which does not necessarily import such a result: Myers v. Robinson, 74 Pa. 269; Coleman v. Chadwick, 80 Pa. 81; Williams v. Hay, 120 Pa. 485; Robertson v. Coal Co., 172 Pa. 556; Dignan v. Altoona Coal & Coke Co., 222 Pa. 390.
    The support of the surface is not a part of the mining operation, but an absolute, independent duty imposed upon the owner of the coal: Buchanan v. Andrew, L. R. 2 Scotch App. 286; Jones v. Wagner, 66 Pa. 429; Pringle v. Vesta Coal Co., 172 Pa. 438; Hill v. Pardee, 143 Pa. 98; Carlin v. Chappel, 101 Pa. 348.

      Stephen Stone, of Stone & Stone, with him A. Wilson McCandless, for appellee,
    cited Kellert v. Rochester & Pittsburg Coal and Iron Co., 226 Pa. 27.
    January 2, 1912:
   Opinion by

Mr. Justice Elkin,

The rule of law upon which appellant relies is well settled in Pennsylvania, but difficulties frequently arise in applying it to the facts of a particular case. The rule is that in a grant of all the coal underlying a tract of land, in the absence of an express waiver, or the use of words from which the intention to waive clearly appears, there is imposed upon the mineral estate the servitude of surface support. In our state there has been no departure from this rule which has been recognized and asserted from Jones v. Wagner, 66 Pa. 429, to Dignan v. Coal & Coke Company, 222 Pa. 390. While the common law right of the owner of the soil to have the surface of his land supported by the underlying mineral estate conveyed to another party, has always been recognized by our courts, it is equally true that the surface owner may and does waive this right by a grant of all the coal with the right to mine and remove it without liability for damage to the surface by so doing. Our cases relating to this question may very properly be divided into three classes: 1. Those relating to grants of coal without any mention of damages to the surface by mining and removing the same; 2. Those relating to grants of coal coupled with mining rights and the waiver of damages resulting by reason of the proper exercise of the mining privileges; and, 3. Those cases in which the grant of the coal together with mining rights is followed either by an express waiver of damages to the surface resulting from the removal of the coal, or by words importing such a waiver. In the first class of cases, the owner of the surface has the unquestioned right to recover damages for injuries to the surface occasioned by the removal of'the coal. To this class belong Jones v. Wagner, supra; Horner v. Watson, 79 Pa. 242; Coleman v. Chadwick, 80 Pa. 81; Carlin v. Chappel, 101 Pa. 348; Pringle v. Vesta Coal Co., 172 Pa. 438; Weaver v. Coal Co., 216 Pa. 195, and Berkey v. Coal Mining Co., 229 Pa. 417. In this class of cases, there being no waiver of damages to the surface either express or implied, the surface owner is entitled to recover compensation for such injuries as he may have sustained by failure to properly support the surface. In the second class of cases there was a waiver of damages but it was held that this waiver applied to the mining privileges granted and had no reference to the right of the owner to have his surface supported. In this class are included Williams v. Hay, 120 Pa. 485, and Dignan v. Coal & Coke Company, supra. The third class of cases includes Scranton v. Phillips, 94 Pa. 15; Madden v. Lehigh Valley Coal Co., 212 Pa. 63; Miles v. Pennsylvania Coal Co., 217 Pa. 449, and Kellert v. Coal & Iron Company, 226 Pa. 27. In the cases last cited it was expressly held that the rule giving to the owner of the soil the right of surface support had no application in a case in which the parties had otherwise covenanted. Like any other right, the owner of the surface may waive the right of surface support by his deed or covenant. It is therefore just as well settled that a surface owner may part with his right of surface support by a covenant to do so, as it is that the servitude of support is imposed upon the subjacent estate. The important question in cases of this character is whether the surface owner by express words or by necessary implication has waived the right of surface support. The intention of the parties must and should govern. It is true the intention must be gathered from the language used in the conveyance and not from evidence aliunde. This brings us to a consideration of the exact question raised by this appeal. Did the grantor either by express language or by necessary implication waive the right of surface support? The deed conveyed all the coal underlying the tract in question. There was an entire severance and an absolute conveyance of all the coal. Following the conveyance of the coal there was a grant of mining rights and privileges in the following language : “Together with the free and uninterrupted right of way into, upon and under said land at such points and in such manner as may be proper and necessary for the purpose of digging, mining and carrying away said coal; hereby waiving all damages arising therefrom.” The learned court below held that the intention of the parties, as gathered from the words of the grant, was to waive all damages arising from digging, mining and carrying away the coal, including damages to the surface. The mining privileges granted were incident to the mining and removing of all the coal underlying the tract of land, and the covenant as to damages was in these words, “hereby waiving all damages arising therefrom.” If this waiver referred to damages to the land arising from the removal of all the coal, the case at bar is squarely ruled by Kellert v. Coal & Iron Company, 226 Pa. 27. In that case the covenant was: “And the said parties of the first part do hereby release all and every claim or claims for damages to the said land caused by operating or working of said mines in a proper manner.” The learned court below in discussing the waiver in that case used the following language: “The manifest object of the stipulations and release in the deed of the grantors was to secure to the grantee without liability for damages on account of injury to the surface, that which had been purchased, namely, all the coal in the land; providing it was taken out in a proper manner. Without these stipulations and release the grantee could not remove any of the coal purchased, no matter how carefully and skilfully it might be done, if its presence in the ground were necessary to the support of the surface. * * * * The grantors and grantee knew this, or are presumed to have known it, and it must be assumed that they made their contract with reference to the law applicable to such transaclions.” That case was put squarely upon the manifest intention of the parties gathered from the language of the waiver and the nature of the transaction. On appeal, this court affirmed the judgment on the opinion of the court below. The reason given by the lower court in that case was approved here and judgment was accordingly entered. In that case as in this the waiver of damages related to the land not included in the grant of the coal. The waiver of damages in the present case is as broad and comprehensive as in the case just cited, and a reversal in the present case would in effect overrule that case. Both cases depend upon the intention of the parties relating to the waiver of damages, and we think the rule in one case governs in the other. In the present case we do not doubt that the words “waiving all damages” were intended to include such injuries to the land as resulted from mining and removing all the coal. The grantor conveyed all the coal and no doubt intended to release all damages occasioned by the removal of it. As we have hereinbefore pointed out the release of damages in the present case related to the injuries resulting to the land by the removal of the coal, just as the waiver in the Eellert case above cited had reference to the land there in question.

Decree affirmed at the cost of the appellant.


author: Mr. Justice Moschzisker,

text:
    Erdner v. Erdner, Appellant.

      Constitutional law — Title of act — Husband and wife — Desertion and non-support — Equity.
    1. Tbe Act of April 27, 1909, P. L. 182, amending the Act of May 23, 1907, P. L. 227, and entitled “An Act to amend the Act of 1907 by permitting husband and wife to testify, and providing for the method of service or process” is not unconstitutional as containing more than one subject in its title.

      Equity — Equity practice — Service by publication — Legal Journal — Act of May 8, 1909, P. L.

    2. The Act of May 3, 1909, P. L. 424, requiring legal advertisements in legal journals, does not apply to the publication of a notice to a non-resident defendant in an equity case, provided by the Act of April 6, 1859, P. L. 387, where the court has made a special order directing in what newspaper the notice should be published.

      Husband and wife — Desertion and non-support — Equity proceeding — Acts of May 88, 1907, P. L. 887 and April 87, 1909, P. L. 188 — Service—Publication.
    3. A court of equity has no power under the Acts of May 23, 1907, P. L. 227, and April 27, 1909, P. L. 182, giving a wife equitable relief against the estate of her husband who has deserted her, if service has been had upon the husband by publication only, to enter a decree appointing a receiver and directing him to take all of the property and to sell or mortgage sufficient of the assets for the benefit of creditors and the support and maintenance of the wife. In such case the court itself must first determine what amount shall be suitable, and what property shall be sold or mortgaged for the maintenance of the wife.
    Argued Nov. 3, 1911.
    Appeal, No. 98, Oct. T., 1911, by defendant from decree of C. P. No. 2, Allegheny Co., Oct. T., 1910, No. 420, on bill in equity in case of Emma Erdner v. John W. Erdner.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Rule to set aside a service under which was entered the following decree:

      “And now, to wit, Nov. 7, lt)10, this cause coming up for argument, it is ordered that George G. Erdner be appointed receiver of the Estate of John W. Erdner, to take charge of all property of defendant and preserve assets for benefit of creditors and for support and maintenance of wife of said John W. Erdner and with power to sell or mortgage sufficient of such estate for those purposes, and with further power to bring and defend all suits or actions at law that may be necessary to that end, and the creditors of the said John W. Erdner are hereby restrained from proceeding in any way against the property of said John W. Erdner, without the consent of the Court.”
    Shapes, J., filed the following opinion:
    “The proceeding is under the Act of May 23, 1907, as amended by the Act of April 27,1909, in relation to husband and wife and the remedies of married women in cases of desertion and non-support. While this action was brought before the passage of the Act of 1909, publication was had after that act, as therein directed, according to the method provided in the Act of April 6, 1859, P. L. 387. The bill of petition alleges a desertion before the passage of the Act, the domicile of the wife in Allegheny County, and that the husband has absented himself from the Commonwealth, and prays for the seizure and sale of certain real estate in the county of Allegheny, alleged to belong to the defendant, as may be necessary for the maintenance of the plaintiff. The defendant appeared d. b. e. and obtained a rule to show cause why the order authorizing service by publication should not be vacated and such service set aside.
    “The defendant claims thatthe Acts of 1907 and 1909, above mentioned do not authorize a service by publication, and that if they do they am unconstitutional. The Act of 1909 is said to be unconstitutional because it is alleged that the title contains m»re than one subject, the title being: ‘An Act to amend the Act of 1907, by permitting husband and wife to tesdfy, and providing for the method of service or process.’ ” We are unable to see how this constitutes two subjects. The object of the Act is to establish a proceeding for seizure of the property of husbands who desert their wives and making it available for the support of the wife, and the provision as to who may testify and as to the mode of service are both germane to the general subject and a mere detail of it, and could not well be put in two different acts.
    “It was alleged that the Act is ex post facto, the alleged desertion having taken place in 1905. This is not, we apprehend, a question which can be discussed upon the application of one who appears de bene esse. We are now concerned only with the validity of a service upon him. Whether the circumstances are such as will make the Act applicable to him or not can only be discussed when the subject matter of the bill comes before the court.
    “It is further alleged, and this is the principal matter in question, that the proceeding is not of such a character as to authorize the Commonwealth to proceed against him without an actual service, and that .a service by publication is therefore null. The argument of the defendant is based upon the view that the proceeding is an attempt to collect a debt, or to enforce the lights of a creditor or at least of a quasi-creditor. We agree with the defendant that no personal decree could be entered against him on the proceeding provided by these Acts, and if they attempt to authorize any such proceeding they would be to that extent unconstitutional and void. But we do not understand that the Act undertakes to do anr such thing. All it provides for is that in case a wife is domiciled in this Commonwealth and has been diverted by her husband, and the husband has, within tie jurisdiction of the Court, property real or personal which can be applied to her support, this may be dme by adopting the proceeding provided for by the Ait. The duty of the husband to support Ms wife does not depend upon contract, but results from the status of the parties. It would he strange indeed were the Commonwealth unable to seize by appropriate proceedings the property left behind by a deserting husband and use it for the maintenance of the wife. The subject, matter of the proceeding is not a personal right of action of the wife against the husband, but is the status of the wife and the property itself, and as these are within the jurisdiction- of the Court the case falls within the terms of the Act of 1859, the constitutionality of which as to service by publication under the circumstances provided for in it has not been questioned.

      “It is also objected to the service that no publication was made in the Pittsburgh Legal Journal, as required by the Act of May 3, 1909. That Act provided that all notices required by law to be published shall be put in a legal newspaper ‘unless dispensed with by special order of Court.’ The order for the publication of this case directs in what newspaper the publication shall be made without any mention of the Pittsburgh Legal Journal. The Act of 1859 provides that the publication shall be made in such one or more newspapers ‘as such Court shall by special order direct.’ We are of the opinion that an order of this Mnd, especially one made under an Act requiring a special order, amounts to a dispensation from publication in a legal journal. Being of opinion, therefore, that the service is good, the rule is discharged.”

      Error assigned, among others, was (5) the decree entered.

      George H. Quaill, for appellant.

      Edmond Englert, for appellee.
    January 2, 1912:
   Opinion by

Mr. Justice Moschzisker,

This is an appeal from an order discharging a rule to set aside the service by publication of a bill in equity filed under the Act of May 23,1907, P. L. 227, as amended by the Act of April 27, 1909, P. L. 182. The appellee states in its brief that any objection to the plaintiff’s appeal upon the ground that it might be viewed as from an interlocutory order, and all other such possible objections, are waived “for the purpose of settling the property rights involved.” The opinion of Judge Shafer in the court below disposes of the several questions discussed therein so satisfactorily that it is unnecessary to treat of them here. But we feel that the service was insufficient to support the decree entered.

There are two sections in the Act of 1909; the first provides, “That if any man shall separate himself from his wife without reasonable cause, and being of sufficient ability, shall neglect-or refuse to provide suitable maintenance for his said wife, such wife * * * is hereby empowered to bring her action * * in equity against such husband for maintenance * * * and the said court shall have power to entertain a bill in equity in such action, and shall make and enforce such orders and decrees as the equities of the case demand; and * * * the husband and wife shall be fully competent as witnesses.” The second section provides, “Whenever such husband shall absent himself from the commonwealth, proceedings may be had against any property, real or personal, of said husband, necessary for the suitable maintenance of said wife, and the court may direct a seizure and sale, or mortgage, of sufficient of such estate as will provide the necessary funds for such maintenance; and service upon the defendant shall be made in the manner provided in the Act of * * * sixth of April, 1859;” The Act of April 6, 1859, P- L. 387, provides “that in any proceeding in equity concerning goods, chattels, lands, etc., situate or being within the jurisdiction of such court * * *” or “where the court have acquired jurisdiction of the subject-matter in controversy by the service of its process on one or more of the principal defendants” that personal service may be made outside of the jurisdiction of the court wherever the defendant may be found and “that whenever it shall appear to the satisfaction of such court” that the defendant cannot be found “so as to be personally served,” the court may make an order for service by publication, and upon the expiration of the time fixed in the order, “proceed as fully and effectually as if such process had been served within the jurisdiction of such court.”

The Acts above referred to contemplate two sitúa-. lions, one, a proceeding against the person; and the other, a proceeding in rem. In the former power is given “to make and enforce such orders and decrees as the equities of the case demand”; but in the latter the court is only authorized to “direct a seizure and sale, or mortgage, of sufficient of such estate as will provide the necessary funds” for the “suitable maintenance” of the wife. In the first, personal service is intended, and enlarged powers are given to the court; while in the last, service only by publication is contemplated, and the powers thereunder are limited. This same idea is to be found in the earlier Acts of Assembly to compel support, where warrants for the arrest of the person and warrants for the seizure of goods are both provided for (See 1 Stewart’s Purdon’s Dig. 13 Ed. p. 1217, et seq.); and in Guardians of the Poor v. Picard, 1 S. & R. 239, construing these earlier Acts, we held that the delegation by the judges of the power and duty of determining the amount of a husband’s property to be taken for the maintenance of his wife and family was not conformable to either the words or the spirit of the law. Here the decree expressly declares that the receiver is “to take charge of all property of defendant and preserve the assets for the benefit of creditors;” it authorizes him “to sell or mortgage sufficient of such assets” for the “benefit of creditors” and the “support and maintenance of the wife,” and contains an order restraining all creditors from proceeding against the defendant or his property. Under the service in this case the court had power to direct a sale or mortgage of so much of defendant’s estate as might be necessary for the maintenance of the plaintiff, but before so doing it should first have determined what amount would be suitable, and, next, what property of the defendant should be taken for that purpose; then it could have decreed a sale or mortgage accordingly. Since the property affected was within the jurisdiction, service by publication was sufficient, and we cannot say that the notice was lacking in any essential detail; but the court had no power to delegate to the receiver the duty of deciding the amount that would be necessary or suitable for the maintenance of the wife, or of determining the property to be sold or mortgaged for that purpose; nor could it make this special statutory remedy given to a wife a substitute for a bankruptcy or insolvency proceeding for the benefit of creditors.

The fifth assignment of error which goes to the final decree is sustained, and the others will not be passed upon; the decree is set aside, the costs to be paid by the appellant’s estate.


text:
    Donovan, Appellant v. Woodworth.

      Wills — Construction—Life estate — Children—Buie in Shelly’s case.

    A devise of land to a daughter “to have and to hold for the term of her natural life and at her death to vest in her child or children, if any such survive her, and in the event of her death without child or children,” then over to testator’s sons, creates in the daughter a life estate only.
    Submitted Nov. 3, 1911.
    Appeal, No. 10, Oct. T., 1912, by Margaret Marion Donovan et al. from judgment of C. P. No. 4, Allegheny Co., Third Term, 1911, No. 201, for defendant on case stated in case of Margaret Marion Donovan and Charles H. Donovan v. A. M. Woodworth.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Case stated to determine title to real estate.
    Swearingen, P. J., filed the following opinion:
    “The plaintiffs, Margaret Marion Donovan and Charles H. Donovan, her husband, agreed in writing to convey.....land unto A. M. Woodworth, the defendant, in fee, by deed of general warranty, for the consideration of $10,000. The defendant declined to accept the conveyance and to pay the purchase money for the reason as he alleged, that Mrs. Donovan has only a life-estate in said land. Mrs. Donovan alleged that she owns it in fee. Thereupon the parties filed this case stated, in which they agreed that if the Court be of the opinion Mrs. Donovan has a fee-simple title, judgment should be entered in favor of the plaintiffs; but if not, then judgment should be entered in favor of the defendant.
    “Mrs. Donovan derived her title from her father, George E. Bullock, who died seised of the land March 10, 1902, testate. His will was dated January 5, 1900, and was duly probated ..... The testator left to survive him a widow, Harriet E. Bullock, two sons, Jesse Edson Bullock and Harry Corydon Bullock, and one daughter, Margaret Marion Bullock, one of the plaintiffs, who on January 23, 1904, was inter-married with Charles H. Donovan, the other plaintiff. The item of said will upon which this controversy turns is as follows: (Fourth) ‘I give, devise and bequeath unto my daughter, Margaret Marion Bullock, with its buildings, and appurtenances, all the land situated on Main and Sullivan street in Canton Borough, which I purchased of Mix and Hooper, Abner Doty and William Crooks, to have and to hold for the term of her natural life, and at her death to vest in her child or children, if any such survive her, and in the event of her death without child or children surviving her, the said land shall vest in my sons Jesse Edson and Howard Cory-don, share and share alike, to them and their heirs forever, the child or children of each, should either or both of my said sons not survive my daughter Margaret Marion, to take the same share that my son or sons would take if living, this devise being subject to the payment of a portion of the income of the said land to my wife, Harriet E. Bullock, as hereinafter provided:’
    “The plaintiffs contend that the life-estate given to Mrs. Donovan in the first part of the above item became a fee-tail (now enlarging to a fee-simple under our statutes), by virtue of the rule in Shelly’s case, for the reason that the words of the devise in remainder are to be construed as equivalent to ‘the heirs of the body’ of the testator’s daughter, and are therefore words of limitation of the estate of freehold given to her. The defendant contends that the words of the devise in remainder are to be construed as words of purchase, and that therefore the rule in Shelly’s case is not applicable.

      “Nothing is better settled than that the rule in Shelly’s case cannot be used in the interpretation of a will. The rule can only be invoked after the meaning of the language used has been ascertained and the intent of the testator determined. If then it is found that the testator intended the remaindermen to take directly from him and thus to form a root from which a new line of descent is to spring, the devisees in remainder are to be regardéd as purchasers, and the rule in Shelly’s case has no application. If, on the other hand, it is found that the testator intended the. remainder-men to take by and through the first taker, either as heirs of the body or as heirs generally, and the first taker to be the root from which the line of descent is to spring, then the rule does apply and the life-estate or other freehold of the first taker is enlarged into a fee-simple or a fee-tail, as the case may be: Kemp v. Reinhard, 228 Pa. 143. We must, therefore, ascertain the intention of this testator from the will itself and from the admitted circumstances. What was the intention of the testator with respect to this real estate? It is evident that he intended to give his daughter but a life-estate, for he has so stated by apt words. Did he also intend her to be the root from which a new lim of descent was to spring? After giving her the land for life, he then declared, ‘and at her death to vest in her child or children, if any such survive her.’ The word ‘vest’ is not the ordinary word used in the gift of land. Anciently, it meant to put a party in possession by the ceremony of investiture. Now, however, it ordinarily means the clothing of a party with an immediately fixed right of present or future possession of land. So that the testator clearly meant, by the language used, that the child or children of his daughter, if any survived her, should have the right to possession of said land immediately upon her demise, and, as we think, their title was to be a fee, because the subsequent devise over was only to be effective, in case no child or children survived Margaret Marion Bullock. 'The words ‘child or children’ are words of purchase, according to the well-considered authorities, and they are not words of inheritance. So that, when the testator directed this land to go to ‘the child or children’ of his daughter, the legal meaning of the words used was that they should take as purchasers. This legal meaning of the words must be adopted, unless it clearly appears that, by these words, he intended ‘the heirs of her body;’ for it cannot be that, by these words, he meant her ‘héirs generally.’ There is nothing in the item of the will under consideration to indicate that by the words, ‘child or children’ the testator meant ‘the heirs of the body’ of his daughter. The expressions are not identical; the latter is much the more comprehensive term. In the clause of said item following the testator provided that, if his daughter should die ‘without child or children surviving her, the said land shall vest in my sons ..... share and share alike, to them and their heirs forever.’ By this he constituted a new and a different line of descent, not dependent upon the failure of heirs of her body but dependent upon failure of ‘child or children’ — some only of the possible heirs of her body — to survive her. He did not mention her ‘grandchildren’ or other descendants, nor did he do so in any other part of his will. In our opinion, no expressions in the fourth item can be found which indicate that the testator intended the words ‘child or children’ to have any other than their accepted legal meaning. We must, therefore, hold that the intention of the testator, as expressed in the fourth item of his will, was that the ‘child or children’ of his daughter were to take directly from him and not by and through their mother, as heirs of her body. Therefore, they should take as purchasers, and the rule in Shelly’s case has no application......
    “Being of opinion that under the will of George E. Bullock, deceased, Margaret Marion Donovan (nee Bullock) took but a life-estate in tbe land in question, judgment must be entered for tbe defendant......”

      Error assigned was in entering judgment for defendant.

      R. A. and James Balph, for appellants.

      O. P. Robertson, for appellee.
    January 2, 1912:
   Opinion by

Mr. Justice Moschzisker,

Margaret Marion Donovan took but a life estate in tbe land in question. Tbe part of tbe will essential to a determination of the questions involved in this appeal is quoted in the opinion of the Common Pleas published in connection herewith. The language employed throughout the whole instrument indicates that the testator understood the legal significance of the terms “heirs” and “children” and appreciated the difference in meaning between the two, for wherever there was a clear intention to pass an absolute estate he made use of the word “heirs” or the words “in fee.” In the very item in question, the language used in connection with the devise over to his sons is “to them and their heirs forever.” After giving the property to his daughter “to have and to hold for the term of her natural life,” he adds, “and at her death to vest in her child or children, if any such survive her.” This must be taken to mean child or children living at the time of her death, and not to contemplate an indefinite failure of issue: Smith v. Piper, 231 Pa. 378; and we feel that the word “vest” was used in the sense in which it is construed by the Court below, and not as the equivalent of “descend to.” We conclude that the testator intended his said grandchildren to take from Mm and not through their mother.

The two cases chiefly depended upon by the appellants are distinguishable from the present one. In the first of these, Simpson v. Reed, 205 Pa. 53, the devise was to a daughter “for life only, remainder after her death to her child or children in fee, but if my daughter at the time of her death has neither husband, child or children, she may also dispose of her share or part of said real estate as she sees proper;” and we held that it was plain that the testator intended “the remainder to go to the general or lineal heirs of the first taker.” In the other case, Pifer v. Locke, 205 Pa. 616, the devise was “I will and devise to my daughter H. the house and lot * * * * for and during her natural life, and at her death I devise and bequeath the same unto her children or issue in fee simple.” This also plainly indicated the lineal heirs of the first-taker.

The opinion of the learned Court below amply vindicates its decision. The assignment of error is overruled and the judgment is affirmed.